By accessing this site, you agree to use available technologies, such as cookies and analytics, to tailor content and advertising and provide tools for social media. This will be used to analyze website traffic, allowing us to understand visitor trends and improve our services.Learn more

The second paragraphs of Article 49 of the 1949 Geneva Convention I, Article 50 of the 1949 Geneva Convention II, Article 129 of the 1949 Geneva Convention III and Article 146 of the 1949 Geneva Convention IV provide:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 49, second para.; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 50, second para.; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 129, second para.; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 146, second para.

Hague Convention for the Protection of Cultural Property

Article 28 of the 1954 Hague Convention for the Protection of Cultural Property requires States “to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who … order to be committed a breach of the present Convention”.

Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, Article 28.

ICC Statute

Article 25(3) of the 1998 ICC Statute provides:

A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

…

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted.

Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 25(3).

Second Protocol to the Hague Convention for the Protection of Cultural Property

Article 15 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property, which also contains a list of acts considered as offences within the meaning of the Protocol, provides:

Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties. When doing so, Parties shall comply with general principles of law and international law, including the rules extending individual criminal responsibility to persons other than those who directly commit the act.

Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 15.

Second Protocol to the Hague Convention for the Protection of Cultural Property

Article 22(1) of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides: “This Protocol shall apply in the event of an armed conflict not of an international character, occurring within the territory of one of the Parties.”

Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 22(1).

Statute of the Special Court for Sierra Leone

Article 6(1) of the 2002 Statute of the Special Court for Sierra Leone, entitled “Individual criminal responsibility”, provides:

A person who … ordered … the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute [i.e. crimes against humanity, violations of common Article 3 of the 1949 Geneva Conventions and of [the 1977 Additional Protocol II], and other serious violations of international humanitarian law] shall be individually responsible for the crime.

Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 6(1).

Statute of the Special Tribunal for Lebanon

Article 3(1) of the 2007 Statute of the Special Tribunal for Lebanon provides:

A person shall be individually responsible for crimes within the jurisdiction of the Special Tribunal if that person:

(a) Committed, participated as accomplice, organized or directed others to commit the crime set forth in article 2 of this Statute.

Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 3(1).

Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions

Paragraph 3 of the 1989 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions provides:

Governments shall prohibit orders from superior officers or public authorities authorizing or inciting other persons to carry out any such extralegal, arbitrary or summary executions … Training of law enforcement officials shall emphasize the above provisions.

Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, recommended by the UN Economic and Social Council, Res. 1989/65, 24 May 1989, § 3.

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

Paragraph 26 of the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides: “In any case, responsibility also rests on the superiors who gave the unlawful orders [to use force and firearms resulting in the death or serious injury of a person].”

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990, UN Doc. A/CONF.144/28/Rev.1, 1990, p. 112, § 26.

London Programme of Action on Humanitarian Issues

Article 3(i) of the 1992 London Programme of Action on Humanitarian Issues provides: “In carrying out the Programme of Action, the parties to the conflict undertook to abide by the following provisions: … that persons who … order the commission of grave breaches [of IHL] are individually responsible.”

Programme of Action on Humanitarian Issues agreed between the Co-chairmen of the London International Conference and the Parties to the conflict in Bosnia and Herzegovina, London, 27 August 1992, annexed to Report by the Special Rapporteur of the UN Commission on Human Rights on the situation of human rights in the territory of the former Yugoslavia, UN Doc. E/CN.4/1993/50, 10 February 1993, Annex III, Article 3(i).

ICTY Statute

Article 7(1) of the 1993 ICTY Statute provides: “A person who … ordered, … or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.”

Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 7(1).

ICTR Statute

Article 6(1) of the 1994 ICTR Statute provides: “A person who … ordered, … or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.”

Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 6(1).

CSCE Code of Conduct

Paragraph 31 of the 1994 CSCE Code of Conduct provides:

The participating States will ensure that armed forces personnel vested with command authority exercise it in accordance with relevant national as well as international law and are made aware that they can be held individually accountable under those laws for the unlawful exercise of such authority and that orders contrary to national and international law must not be given.

The Code of Conduct on Politico-Military Aspects of Security, adopted at the 91st Plenary Meeting of the Special Committee of the CSCE Forum for Security Co-operation, Budapest, 3 December 1994, incorporated as Decision IV in the CSCE Budapest Document, Towards a Genuine Partnership in a New Era, Doc. RC/1/95, corrected version of 21 December 1994, § 31.

ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)

Article 2(3) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides:

An individual shall be responsible for a crime set out in article 17, 18, 19 or 20 [crime of genocide, crimes against humanity, crimes against United Nations and associated personnel, war crimes] if that individual:

…

(b) Orders the commission of such a crime which in fact occurs or is attempted.

Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 2(3).

ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)

Article 16 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Crime of aggression”, provides: “An individual who, as leader or organizer, … orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.”

Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 16.

UNTAET Regulation No. 2000/15

Section 14(3) of the UNTAET Regulation No. 2000/15 provides:

In accordance with the present regulation, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the panels if that person:

…

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted.

Argentina’s Law of War Manual (1989) provides: “The persons accused of having committed or ordered the commission of [grave] violations, including those resulting from an omission rather than an action, must be searched for.”

Australia’s Defence Force Manual (1994) states: “Specifically, a commander will be held accountable if an order is given to a subordinate to commit a breach of LOAC or knows that a breach is occurring and fails to intervene.”

Australia’s LOAC Manual (2006) states that “a commander will be held accountable for ordering a subordinate to commit a war crime or for failing to intervene if the commander knows that a breach is occurring”.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.6.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Cameroon’s Disciplinary Regulations (1975) states: “The commander is personally responsible for the orders he gives. He looks after their execution and engages his responsibility for their consequences.”

The commander has the right and the duty to require absolute obedience from his subordinates. However, he can not require them to accomplish acts, the execution of which would engage their penal responsibility. These acts are the following: … acts contrary to the laws and customs of war.

Any person who … ordered … a war crime described in Sections 2 and 3 [crimes against peace, crimes against humanity, genocide, grave breaches of the Geneva Conventions, grave breaches of the 1977 Additional Protocol I, violations of the Hague Conventions and customary law] may be held criminally responsible for the crime.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 24.

Canada

Canada’s Code of Conduct (2001) provides: “The issuance of a manifestly unlawful order is a crime in itself.”

The Code of Conduct also states: “The importance of leadership and discipline cannot be overstated. Good leaders do not issue manifestly unlawful commands. They give clear orders which will not be misunderstood.”

Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):

1014. Responsibility

1. The responsibility for the treatment of PWs rests upon the Detaining Power. Failure to properly care for PWs may make that power liable to pay compensation, while the individuals responsible for such ill-treatment or for allowing it to occur, are liable to be tried as war criminals.

…

1038. Breaches of PW Convention

1. Parties to the conflict shall take such measures as may be necessary to suppress and punish all breaches of [the 1949 Geneva Convention III]. If a breach amounts to a grave breach all persons responsible therefore, or having ordered such acts, shall, regardless of nationality, be liable to be tried by any party to [the 1949 Geneva Convention III]. They may also be handed over by the latter for trial by any other party to [the 1949 Geneva Convention III] able to prosecute effectively.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1014 and 1038.

In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states: “Any person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a war crime … may be held criminally responsible for the crime”.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1610.1.

Canada

Canada’s Prisoner of War Handling and Detainees Manual (2004) states:

If any person commits or orders others to commit [grave breaches of the 1949 Geneva Conventions or the 1977 Additional Protocol I], he is liable to be brought to trial in any country including his own or, if captured, in that of the enemy.

Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 103.1.

Canada

Canada’s Code of Conduct (2005) provides: “The issuance of a manifestly unlawful order is a crime in itself.”

The Code of Conduct also states: “The importance of leadership and discipline cannot be overstated. Good leaders do not issue manifestly unlawful commands. They give clear orders which will not be misunderstood.”

has the right and the duty to demand the obedience of subordinates, but may not order that they carry out acts contrary to the law, to rules of international humanitarian law applicable in armed conflict and to regularly ratified or approved international conventions.

The Congo’s Disciplinary Regulations (1986) provides that in the exercise of his authority, “the commander … bears full responsibility for orders given and for their execution; this responsibility can not be relieved by the responsibility borne by his subordinates … He cannot order the commission of acts … which constitute crimes.”

International humanitarian law has also established individual and criminal responsibility for the respect of humanitarian obligations.

This responsibility lies with all; everyone must answer for his conduct in this way. Military commanders have a very special responsibility. …

…

It is clear that the superior who gives an order contravening the law is responsible on the criminal law level. The statute of the Nuremberg Tribunal expressly specifies that even the position as head of State does not free one from criminal responsibility.

France’s Disciplinary Regulations (1975), as amended, states that the commander “bears full responsibility for the orders given and for their execution, and is not relieved thereof by the responsibility borne by his subordinates”.

Each individual is responsible for the violations of the law of armed conflicts for which he/she has made himself/herself guilty, whatever the circumstances may be … The commanders are responsible … for the acts they commit [themselves] and for the orders they give.

Superiors shall only issue orders which are in conformity with international law. A superior who issues an order contrary to international law exposes not only himself but also the subordinate obeying to the risk of being prosecuted.

Article 11: In the exercise of command, no order may be given or executed which is contrary to national law, international humanitarian law and human rights.

…

Article 28: Defence forces personnel, in particular commanders, shall be held responsible for acts committed in violation of human rights and international humanitarian law in the execution of illegal orders.

Article 11: In the exercise of command, no order may be given or executed which is contrary to national law, international humanitarian law and human rights.

…

Article 28: Defence forces personnel, in particular commanders, shall be held responsible for acts committed in violation of human rights and international humanitarian law in the execution of illegal orders.

Nigeria’s Manual on the Laws of War provides that commanders are responsible for war crimes committed by their subordinates “when the acts in question have been committed in pursuance of an order of the commander”.

South Africa’s LOAC Manual (1996) provides: “Signatory States are required to treat as criminals under domestic law anyone who commits or orders a grave breach.”

South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 35.

The manual further states: “An order to commit a war crime is an unlawful order … The person giving such an order would also be guilty of a war crime.”

South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 44.

Spain

Spain’s LOAC Manual (1996) states:

The law of war provides that governments take all legislative measures necessary to determine the penal and disciplinary sanctions for the persons who commit or who give the order to commit violations of the laws and customs of war.

Spain’s LOAC Manual (2007) states: “The law of armed conflict provides that governments must take all necessary legislative measures to establish the penal and disciplinary sanctions to be applied to those who … order others to commit violations of the laws and customs of war.”

Switzerland’s Basic Military Manual (1987) provides: “If the execution of an order constitutes a crime, the commander or superior who has given this order is punishable as well as the author of the breach.”

Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:

5 Superiors must only give orders that can be carried out legally. Other than the individual criminal responsibility of the authors, superiors are also criminally responsible. In fact, the criminal responsibility of the superior is engaged when he orders, does not hinder or does not subject to disciplinary sanction a violation of the international law of armed conflict or of national law, or if he does not report the case of grave breaches to the prosecution authorities. He is also responsible for misbehaviour of which he could have or should have known, insofar as he does not take any measure to hinder them.

…

17.2 Personal responsibility

…

243 For criminal offences committed under official orders, the superiors or persons who issued the order are punishable, even though they have not personally committed the offence. The subordinates are liable as well if they were aware that executing the order would led to a criminal offence.

Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 5 and 243.

[emphasis in original]

Tajikistan

Tajikistan’s Manual of Internal Service of the Armed Forces (2001) states: “The commander … bears responsibility for an order given and its consequences”.

Tajikistan, Manual of Internal Service of the Armed Forces of the Republic of Tajikistan, endorsed by the Decree of the Madjilsi Namoyandagon of Madjlisi Oli [Parliament] of the Republic of Tajikistan No. 273 of 4 April 2001 and promulgated by the Order of the Minister of Defence of the Republic of Tajikistan No. 3 of 2 May 2001, § 38.

United Kingdom of Great Britain and Northern Ireland

The UK Military Manual (1958) states that the responsibility of military commanders for war crimes “arises directly when the acts in question have been committed in pursuance of an order of the commander concerned”.

United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 631.

United Kingdom of Great Britain and Northern Ireland

The UK LOAC Pamphlet (1981) provides: “If a soldier carries out an illegal order, both he and the person giving that order are responsible.”

United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 10, p. 38, § 1.

United Kingdom of Great Britain and Northern Ireland

The UK LOAC Manual (2004) states:

16.35. Individuals are responsible for the war crimes that they commit themselves or which they order or assist others to commit.

16.35.1. Article 7 of the Statute of the International Criminal Tribunal for the former Yugoslavia provides that “a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime.”

16.35.2. The Rome Statute of the International Criminal Court also confirms that an individual is responsible for a war crime if he:

a. commits the crime himself, on his own or jointly with others, or

b. orders, solicits or induces a crime which is committed or attempted.

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 16.35–16.35.2.

United States of America

The US Field Manual (1956) provides that the responsibility of military commanders for war crimes “arises directly when the acts in question have been committed in pursuance of an order of the commander concerned”.

United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 501.

United States of America

The US Air Force Pamphlet (1976) states: “Command responsibility for acts committed by subordinates arises when the specific wrongful acts in question are knowingly ordered or encouraged.”

United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-2(d).

United States of America

The US Naval Handbook (2007) states:

A naval commander may delegate some or all of his authority; however, he cannot delegate his accountability for the conduct of the forces he commands. Under the law of armed conflict, a commander may be held criminally responsible for ordering the commission of a war crime.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.1.3.

Yugoslavia, Socialist Federal Republic of

The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “Each individual is personally responsible – military personnel and civilians alike – if he commits such violation or orders its commission.”

Argentina’s Decree on Trial before the Supreme Council of the Armed Forces (1983), issued in connection with the situation in Argentina under the military juntas, states:

The existence of plans for orders renders the members of the military junta in office at the time, as well as the officers of the armed forces at the decision-making level, responsible in their capacity as indirect perpetrators for the criminal acts committed in compliance with the plans drawn up and overseen by the superiors (Article 514 of the Code of Military Justice) … [The] responsibility of these perpetrators does not exclude the responsibility that devolves upon the authors of the operative plan.

Argentina, Decree on Trial before the Supreme Council of the Armed Forces, 1983, preamble.

Accordingly, the decree states that the members of the first three military juntas be examined by pre-trial proceedings before the Supreme Court of the Armed Forces.

Argentina, Decree on Trial before the Supreme Council of the Armed Forces, 1983, Article 1.

Armenia

Under Armenia’s Penal Code (2003), giving, during an armed conflict, an “obviously criminal order, aimed at the commission of the crimes defined in Articles 387 [Application of prohibited methods of warfare] and 390 [Serious breaches of international humanitarian law during armed conflict]” constitutes a crime against the peace and security of mankind.

Armenia, Penal Code, 2003, Article 391(3).

Azerbaijan

Azerbaijan’s Criminal Code (1999), in a provision entitled “Negligence or giving criminal orders in time of armed conflict”, provides:

Wilfully giving a criminal order or instruction directed to the commission of the crimes considered in Articles 115–116 of this Code [“violations of [the] laws and customs of war” and “violations of the norms of international humanitarian law in time of armed conflict”] or declaring that no quarter will be given to the subordinate persons … will be punished.

Azerbaijan, Criminal Code, 1999, Article 117(2).

Bangladesh

Bangladesh’s International Crimes (Tribunal) Act (1973) provides:

Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 [crimes against humanity, crimes against peace, genocide, war crimes, the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” or any other crimes under international law] or is connected with any plans and activities involving the commission of such crimes … is guilty of such crimes.

Bangladesh, International Crimes (Tribunal) Act, 1973, Section 4(2).

Belarus

Belarus’s Criminal Code (1999) provides:

If, in a situation of armed conflict, a superior or officer gives an order to his subordinate not to give quarter or any other order or instruction known to be criminal and which permits the commission of crimes set out in articles 134, 135 and 136 of this Code [“use of weapons of mass destruction”, “violations of the laws and customs of war” and “criminal infringement of the norms of international humanitarian law during armed conflicts”] he is punishable.

Belarus, Criminal Code, 1999, Article 137(2).

Belgium

Belgium’s Penal Code (1867), as amended in 2003, provides that “[t]he punishment for the following shall correspond to the punishment for the consummated offence: giving the order, even when non executed, to commit one of the offences under Articles 136 bis, ter and quater [grave breaches of IHL]”.

Belgium’s Law on Discipline in the Armed Forces (1975) states that commanders are responsible for the orders they issue.

Belgium, Law on Discipline in the Armed Forces, 1975, Article 11.

Belgium

Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, which applies to both international and non-international conflicts, provides: “The following shall be punishable by the penalty provided for completed breaches: an order, even where it is not carried out, to commit one of the breaches listed in Article 1 [crime of genocide, crime against humanity and grave breaches].”

Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Articles 3(3) and 4.

Bosnia and Herzegovina

Bosnia and Herzegovina’s Criminal Code (2003) states: “Whoever in time of war or armed conflict orders the violation of laws and practices of warfare … shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment.”

Bosnia and Herzegovina, Criminal Code, 2003, Article 179(1).

Burundi

Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:

Any person who … orders [or] incites to commit … one of the offences proscribed by Articles 2, 3 and 4 of the present law, is culpable of the crime of genocide, a crime against humanity [and/or] a war crime, respectively, according to the modes of criminal participation as they are set out by Articles 67 to 69 of the penal code.

Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 5; see also Article 10.

Cambodia

Cambodia’s Law on the Establishment of the ECCC (2001), in the provision dealing with individual responsibility, provides: “Any Suspect who … ordered … the crimes referred to in Articles 3, 4, 5, 6, 7, and 8 of this law shall be individually responsible for the crime.” The articles referred to deal with “any of the crimes set forth in the 1956 Penal Code” such as: homicide, torture and religious persecution (Article 3); genocide (Article 4); crimes against humanity (Article 5); grave breaches of the Geneva Conventions (Article 6); destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection of Cultural Property (Article 7); and crimes against internationally protected persons as set forth in the 1973 Convention on Crimes against Internationally Protected Persons (Article 8), all of these acts being committed during the period 1975–1979.

Cambodia, Law on the Establishment of the ECCC, 2001, Article 29.

Cambodia

Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides: “Any Suspect who … ordered … the crimes referred to in article 3 new, 4, 5, 6, 7, and 8 of this law shall be individually responsible for the crime”.

Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 29.

The articles referred to, provided that the acts were committed during the period from 17 April 1975 to 6 January 1979, deal with: homicide, torture and religious persecution as set forth in Cambodia’s Penal Code of 1956 (Article 3 new); genocide (Article 4); crimes against humanity (Article 5); grave breaches of the 1949 Geneva Conventions (Article 6); destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection of Cultural Property (Article 7); and crimes against internationally protected persons pursuant to the 1961 Vienna Convention on Diplomatic Relations (Article 8).

Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Articles 3 new–8.

Chad

Chad’s Emblem Law (2014) states:

Any person who, intentionally, in time of war, commits or gives the order to commit acts resulting in the death of or causing serious harm to the body or health of an adversary by making perfidious use of the emblem of the red cross or red crescent or a distinctive signal, commits a war crime and is punished by forced labour.

Perfidious use means to improperly use the distinctive emblem of the red cross, red crescent or other protective signs recognized by international humanitarian law, or improperly using the badge of a parlementaire, the flag or military insignia and uniform of the enemy, or of the United Nations, and by doing so, to cause the loss of human lives or serious injuries.

Chad, Emblem Law, 2014, Article 11.

Colombia

Colombia’s Directive No. 10 (2007), whose objective is to prevent the killing of protected persons, states: “The order of a superior does not exempt the person who issues … the order from individual criminal responsibility for violations of international humanitarian law.”

whoever, in the event of an armed conflict, … orders to be committed acts which can be qualified as grave breaches or war crimes, in conformity with the provisions of international treaties to which Costa Rica is a party, regarding the conduct of hostilities, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilian persons and the protection of cultural property, [applicable] in cases of armed conflict, and under any other instrument of international humanitarian law.

Costa Rica, Penal Code, 1970, as amended in 2002, Article 378.

Democratic Republic of the Congo

The Democratic Republic of the Congo’s Military Penal Code (2002) provides:

Article 5

As perpetrators of an offence are considered:

…

- those who, by offers, gifts, promises, threats, abuse of authority or power, culpable plots or artifice, have directly provoked that offence;

In case of an offence under this Code committed on the express order of a person of higher rank whether administrative or military to a subordinate, the person who gave the order is responsible for the act performed by his subordinate and is liable to punishment so far as the subordinate’s act did not exceed the order given.

Ethiopia, Penal Code, 1957, Article 69.

Ethiopia’s Criminal Code (2004) states:

Article 73.- Responsibility of Person Giving an Order.

In the case of an act committed by a subordinate on the express order of an administrative or military superior who was competent so to do, the person who gave the order is responsible for the crime committed and is liable to punishment, where the subordinate’s act constitutes a crime and did not exceed the order given (Art. 58(3)).

Ethiopia, Criminal Code, 2004, Article 73.

The Criminal Code of 2004 repealed Ethiopia’s Penal Code of 1957.

France

France’s Code of Defence (2004), as amended in 2007, states: “The own responsibility of subordinates does not remove the responsibilities of their superiors.”

Germany’s Law on the Legal Status of Military Personnel (1995) provides that a superior “may give orders only for official purposes and only in observance of the rules of international public law … He bears responsibility for his orders.”

Germany, Law on the Legal Status of Military Personnel, 1995, § 10(4) and (5).

Germany

Germany’s Penal Code (1998) provides: “Whoever commits the crime himself or through another shall be punished as a perpetrator.” As regards incomplete crimes such as an illegal order given but not carried out by the subordinate, it also states: “An attempt to commit a serious criminal offence is always punishable.”

Germany, Penal Code, 1998, §§ 23(1) and 25(1).

Iraq

Under Iraq’s Military Penal Code (1940), a commander is criminally responsible for orders that contemplate the commission of a crime.

Iraq, Military Penal Code, 1940, Articles 43 and 98.

Iraq

Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:

First: A person who commits a crime within the jurisdiction of this Tribunal shall be individually responsible and liable for punishment in accordance with this Law.

Second: In accordance with this Law, and the provisions of the Penal Code, a person shall be criminally responsible if he [or she]:

…

B. Orders, solicits or induces the commission of such a crime, which has occurred or has been attempted.

Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 15(1) and 2(B).

Luxembourg

Luxembourg’s Law on the Punishment of Grave Breaches (1985) provides for the punishment of an individual for ordering an act which is defined as a grave breach of the 1949 Geneva Conventions, even if this order is not executed.

Luxembourg, Law on the Punishment of Grave Breaches, 1985, Articles 1 and 4.

Mexico

Mexico’s Law on the Discipline of the Army and Air Force (1926), as amended to 2004, states:

It is strictly prohibited for a member of the military to give orders whose execution constitutes a crime; the member of the military who gives such orders … will be held responsible according to the Code of Military Justice.

Mexico, Law on the Discipline of the Army and Air Force, 1926, as amended to 10 December 2004, Article 14.

Mexico

Mexico’s Code of Military Justice (1933), as amended in 1996, provides: “Anyone who orders … any act of murder, physical injury or damage to property outside the fighting will be held responsible.”

Mexico, Code of Military Justice, 1933, as amended in 1996, Article 222.

Morocco

Morocco’s Penal Code (1962) provides:

Article 129

Considered as accomplices of an offence classified as a crime or misdemeanour are those who, without direct participation in that offence, have:

1. provoked that action by gifts, threats, abuse of authority or power, culpable plots or artifice, or have given instructions for its commission;

…

Article 131

Someone who has determined a person not punishable due to a personal condition or quality to commit an offence, is liable to the penalties repressing the offence committed by that person.

…

Article 225

Any magistrate, public official, agent or holder of public authority or power who orders or commits any arbitrary act attacking either the individual liberty or civil rights of one or more citizens, is punished with the loss of his civil rights.

If he justifies his act by an order of his hierarchical superiors in an area of their competence, for which he owed them obedience, he benefits from an absolving excuse. In that case, the penalty is only applied to the superiors who have given the order.

Morocco, Penal Code, 1962, Articles 129, 131 and 225.

Netherlands

The Military Criminal Code (1964), as amended in 1990, of the Netherlands provides:

(1) A soldier who intentionally gives an order to a subordinate to commit a crime will be punished as the author of that crime, if the order has been executed.

(2) If the order as meant in paragraph (1) has not been executed, the superior is punished with imprisonment of maximum five years or a fine of the fourth category, but never with a more severe punishment than would apply to the attempt of the ordered crime, or, in case such attempt is not punishable, to the crime itself.

The Report on the Practice of the Netherlands notes that this provision does not require that the order be manifestly criminal.

Report on the Practice of the Netherlands, 1997, Chapter 6.7.

Netherlands

The Military Discipline Act (1990) of the Netherlands provides that giving an illegal order is contrary to discipline.

Netherlands, Military Discipline Act, 1990, Article 28.

Russian Federation

The Russian Federation’s Criminal Code (1996) states:

Article 42. Execution of Order or Instruction

1. Infliction of harm to legally protected interests shall not be qualified as an act of crime provided it was caused by a person acting in execution of an order or instruction binding on him. Criminal responsibility for infliction of such harm shall be borne by the person who gave the illegal order or instruction.

2. A person who committed an intentional offence in execution of an order or instruction known to be illegal shall be liable under the usual terms. Failure to execute the order or instruction known to be illegal shall preclude criminal liability.

Russian Federation, Criminal Code, 1996, edition 2008, Article 42.

The Criminal Code also states that superiors are responsible for their orders, their consequences and their conformity with current legislation.

Russian Federation, Criminal Code, 1996, edition 2008, Article 332.

Rwanda

Rwanda’s Presidential Order Establishing Army General Statutes (2002) provides:

Any officer and/or man heading a service shall be answerable to his hierarchical superiors for the smooth functioning of that service. He shall be required, therefore, to punish or cause to be punished all abuses, negligence or breaches of laws and regulations that may come to his notice in the exercise of his functions.

…

Any officer and man in a command position shall assume full responsibility for all orders he gives to his subordinates.

Rwanda, Presidential Order Establishing Army General Statutes, 2002, Article 31.

Rwanda

Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:

Without prejudice to the provisions of the Penal Code relating to attempt and criminal participation, the following acts are punished by the penalties provided for the offences addressed by this law:

1° an order, even when without effect, to commit one of the crimes addressed by this law.

Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Article 17.

Serbia

Serbia’s Criminal Code (2005) states:

(1) Whoever during time of war or armed conflict orders the employment of means or methods of warfare that are banned under rules of international law, or who uses such means or methods, shall be punished by imprisonment from two to ten years.

(2) If the offence specified in paragraph 1 of this Article results in the killing of a number of persons, the offender shall be punished by a minimum of five years imprisonment [up to a maximum of] thirty to forty years’ imprisonment.

(3) Whoever calls for the employment of … weapons specified in paragraph 1 of this Article shall be punished by imprisonment of [between] six months to five years.

Serbia, Criminal Code, 2005, Article 376.

Somalia

Somalia’s Military Criminal Code (1963) states:

1. The commander of a military force who, to harm the enemy, orders or authorizes the use of any of the means or methods of warfare that are forbidden by law or by international agreements, or that are contrary to military honour, shall be liable to confinement for not less than five years, except where the act is specified as an offence by a special provision of law.

2. If the act leads to a massacre, a penalty of confinement for not less than 10 years shall be applied.

Somalia, Military Criminal Code, 1963, Article 358.

South Africa

South Africa’s Prevention and Combating of Torture of Persons Act (2013) states:

is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life.

…

(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture.

South Africa, Prevention and Combating of Torture of Persons Act, 2013, Section 4(1)(c) and (4).

Spain

Spain’s Penal Code (1995), as amended in 2003, states: “Anyone who in the event of an armed conflict … orders the employment of means or methods of combat that are prohibited … shall be punished with ten to 15 years’ imprisonment, without prejudice to the penalty for the results of such acts.”

Spain, Penal Code, 1995, as amended on 25 November 2003, Article 610.

Spain

Spain’s Penal Code (1995), as amended in 2010, states:

Anyone who, in the event of an armed conflict, … orders the commission of any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, regulation of the means and methods of war, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment.

Spain, Penal Code, 1995, as amended on 23 June 2010, Article 614.

Spain

Spain’s Royal Ordinances for the Armed Forces (2009), which contains a chapter on the duties with regard to international humanitarian law, states in the general provisions on the commanders’ obligations: “Every commander has the duty to require the obedience of his or her subordinates, and the right to have his or her authority respected, but may not order acts contrary to the laws or that constitute an offence.”

Spain, Royal Ordinances for the Armed Forces, 2009, Article 55.

Spain

Spain’s Law on the Rights and Duties of Members of the Armed Forces (2011) states:

Article 2. Scope of application

1. This law applies to all members of the Armed Forces who acquire the status of military personnel in accordance with Law 39/2007, of 19 November, on Military Career. Accordingly, it applies to official members of the armed forces, except for those persons in administrative roles whose status as military personnel is suspended and students undergoing military training.

2. This status applies to members of the reserves and aspirants when they are incorporated into the armed forces …

…

Article 6. Rules of conduct of military personnel

1. The essential rules governing the conduct of military personnel are the following:

…

Eighth

Discipline, a factor of cohesion that imposes an obligation to give orders responsibly and to obey orders, will be practiced and required in the armed forces as a norm of conduct. …

…

Tenth

Responsibility in the exercise of military command cannot be renounced or shared. … All commanders have the duty to demand obedience from their subordinates and the right for their authority to be respected, but cannot order acts contrary to law or which constitute a crime.

Spain, Law on the Rights and Duties of Members of the Armed Forces, 2011, Articles 2 and 6(1).

Switzerland

Under Switzerland’s Criminal Code (1927), as amended, if the execution of an order is a punishable act, the superior who issued the order is punishable as the perpetrator of the act.

Switzerland,Criminal Code, 1927, as amended, Article 18.

Switzerland

Switzerland’s Military Criminal Code (1927), as amended in 2007, states: “If the execution of an order constitutes a crime or offence, the chief or superior who has given this order is punishable as perpetrator of the act.”

Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, which also contains a chapter on war crimes, states in the part on general provisions:

Art. 20

1 If carrying out an official order constitutes an offence, the commander or the superior who has given that order is punishable as author of the offence.

2 The subordinate who commits an act on order from a superior or in obeying instructions that bind him in a similar manner is also punishable if he is aware, at the time of the facts, of the punishable character of his act. The judge can reduce the penalty.

The Socialist Federal Republic of Yugoslavia’s Criminal Offences against the Nation and State Act (1945) provides for the punishment of “any person who commits a war crime, i.e., who during the war or the enemy occupation acted as an instigator or organiser, or who ordered, assisted or otherwise was the direct executor of [a war crime]”.

In its judgment in the Military Junta case in 1985, Argentina’s Court of Appeal found that the responsibility of the accused stemmed from the orders they gave, in their capacity as commanders-in-chief of the various forces, both to seize the victims and to keep the clandestine system of detention in operation, rather than from the fact that they failed to put a halt to the illegal restrictions of freedom organized by other parties. It found that subordinates of the accused arrested a large number of people, detained them clandestinely in military barracks, held them in captivity under inhumane conditions, turned them over to the Executive Branch or physically eliminated them. These procedures were undertaken in accordance with plans approved and ordered by the military commanders. Since it was proven that the acts were committed by members of the armed and security forces, which were organized in a hierarchical and disciplinary fashion, the Court ruled out the possibility that such acts could have occurred without the express orders of the supervisors. Since the members of these forces never denounced acts they must have known about, such acts could only be explained by the fact that the members knew that the acts, though illegal, had been ordered by their superiors.

Argentina, National Court of Appeals, Military Junta case, Judgment, 9 December 1985.

342. … [In the present case] we conclude that if the act of handing over the detained persons to the army was not done [in pursuance of a] “decision” or “order” of [the] accused … the detained persons would have been executed or handed over to the army [at an] earlier [stage] or instantly after captur[e] … and the group of Razakars [members of an armed militia] and peace committee members would not have kept them guarded for three days [in a] waiting room … Thus, it has been proved beyond reasonable doubt that the group of Razakars and local peace committee members … waited [to receive] … instruction[s] from [the] accused … and as soon as they [received them], the detained civilians were handed over to the army.

160. … P.W.20 [one of the victims] described how he was treated with brutality during his captivity at the AB camp. He stated that he found one bearded Moulavi and the president of Islami Chatra Sangha (ICS) sitting at Dalim Hotel (AB camp). He also found there many detainees blindfolded with their hands tied up. On order of Mir Quasem Ali ([the] accused) he was then also blindfolded and his hands were tied up. At night, he was taken to another room where he was beaten by AB members on instruction of Mir Quasem Ali for obtaining information about whereabouts of freedom fighters. At a stage of torture he became senseless. P.W.20 also stated that when he was brought to Dalim Hotel he asked Mir Quasem Ali for a glass of water as he was fasting. But Mir Quasem Ali replied “what fasting for you, give him urine to drink”.

216. … The act of confinement and torture indisputably is the outcome of act of abduction. Confinement and torture would not have taken place if there was no act of abduction. Since accused Mir Quasem Ali is found to have had ‘concern’ with the commission of confinement and torture of the detainees at the camp, it is lawfully presumed that the act of abduction too occurred on his approval and endorsement and within his knowledge.

437. Who can be called a leader? An individual is termed as a ‘leader’ when his activity aims and involves establishing a common purpose by sharing the vision with others so that they will follow or obey him willingly. Leadership is a process whereby an individual influences a group of individuals to achieve a common objective. Leadership is a process by which a person influences others to carry out an organizational objective. Mir Quasem Ali alleged to have led the gang. The act of abduction is the first phase of the whole and chained system criminal enterprise. If the accused is found to have had part and concern in subsequent phases of chained criminal acts constituting the offence of confinement and torture, logically he is presumed to have had leading part in causing ‘abduction’ as well.

573. [The a]ccused Mir Quasem Ali has been arraigned for his culpable act and conduct forming part of attack committed against unarmed civilian population that resulted in the commission of principal offences of crimes against humanity in 1971 in Chittagong. Prosecution avers that the accused had so acted as a ‘leader’ of Al-Badar force in Chittagong town and of the AB camp set up at Dalim Hotel with which he was actively associated. Accused Mir Quasem Ali was with the politics of Islami Chatra Sangha (ICS), the student wing of Jamat E Islami (JEI) and thus had played a commanding role over the infamous AB camp at Dalim Hotel.

581. We are not convinced with the defence argument that in absence of any documentary evidence the accused cannot be termed as a ‘commander’ or ‘superior’ of Al-Badar members who used to carry out the criminal activities at the camp implanted at Dalim Hotel. Even the circumstances revealed may be considered sufficient to show an individual’s position of authority and his position of ‘de facto commander’. It need not be proved strictly by any formal document. For the purpose of arriving at a finding on this crucial issue we deem it expedient to look at the evidence of detainee witnesses first and then to the authoritative sourced information.

582. It has been alleged that accused Mir Quasem Ali had ‘participation’ to the series of system cruelties committed at the AB camp, by his conscious act or conduct forming part of ‘attack’. First, accused’s act and conduct is to be evaluated and next it is to be seen whether such act or conduct had placed him in the position of ‘command’ and ‘leadership’ of the AB camp at Dalim Hotel. In order to resolve this crucial issue we have to travel through what the detainee witnesses experienced during their protracted captivity at the camp.

583. P.W.9 (detainee victim of charge no. 10) stated that during his detention at the AB camp at Dalim Hotel when he was brought before Mir Quasem Ali he ([the]accused Mir Quasem Ali) asked the whereabouts of freedom fighters and their arms[:] “[I]f you do not tell, you will be killed into pieces and dumped in the river Karnofuli”. On refusal to make any disclosure, Mir Quasem Ali then asked the AB men [to] beat him up … ‘Ordering’ AB men at the detention and torture camp by such culpable utterance proves his … ‘command’ and ‘authority’ o[ver] them …

584. P.W.10 … (detainee victim of charge no. 10) stated that during his detention he was caused to torture by the AB men in a room on the first floor of Dalim Hotel and at a stage some[]one came there and asked the AB men to beat him up again as he refused to disclose information they asked for. He came to know from conversation of the AB men that the name of the person who asked those (AB men) to beat him [P.W.10] … again was Mir Quasem Ali. … Explicitly directing the AB men to beat then detainee … again not only establishes accused’s authority and position of domination over the camp; it also proves the purpose of causing such torture and degrading mistreatment.

595. P.W.19 … a co-detainee (victim of charge no. 9) in narrating his harrowing experience, during captivity at the AB camp at Dalim Hotel stated that he used to see the armed AB men going round at different rooms and Mir Quasem Ali often accompanied them. Extent of causing torture got intensified on arrival and in presence of Mir Quasem Ali at the camp when the AB men used to utter “commander’ has come, ‘Khan Saheb’ has come”.

596. The above version of a direct witness who had been in confinement at the prime execution site, the AB torture camp at Dalim Hotel could not be refuted by the defence in any manner. And even it remained undenied too. This unshaken piece of evidence based on traumatic experience provides force to the fact that accused Mir Quasem Ali was known as ‘Khan Saheb’, ‘Bangalee Khan’, ‘Sarder’ or ‘commander’ of the infamous AB torture & detention camp implanted at Dalim Hotel.

616. It is significant to note that a civilian superior may be held responsible under the theory of civilian superior responsibility only where he has effective control, be it de jure or merely de facto, over the persons committing violations of international humanitarian law. A superior’s or leader’s authority may be merely de facto, deriving from his influence or his indirect power. The determining question is the extent to which Mir Quasem Ali had power of control over the AB camp. No formal superior subordinate relationship was required, so long as the accused possessed de jure or de facto authority to order or that authority may be implied.

Canada

In the Abbaye Ardenne case before a Canadian Military Court at Aurich, Germany, in 1945, the Judge Advocate considered that all circumstances had to be taken into account in order to determine if an officer was responsible for acts committed by his subordinates. He stated: “[I]t is not necessary for you to be convinced that a particular or formal order was given but you must be satisfied before you convict, that some words were uttered or some clear indication was given to the accused that prisoners were put to death.”

In the Seward case in 1996, the Canadian Court Martial Appeal Court considered an appeal with regard to the sentence imposed by a General Court Martial on the officer commanding the 2 Commando unit of the Canadian Airborne Regiment present in Somalia as part of Operation Deliverance. The accused had been charged, inter alia, for having “negligently performed a military duty [imposed on him] in that he, … by issuing an instruction to his subordinates that prisoners could be abused, failed to properly exercise command over his subordinates, as it was his duty to do so”. The Court stated:

This count addressed a failure in command. The evidence … demonstrates that this failure resulted in, at best, confusion in 2 Commando and must be taken to have led ultimately to excesses by some of the respondent’s subordinates. This not only contributed to the death [of a Somali prisoner in the custody of the Command], of which the respondent was acquitted of being a party, but also contributed to several members of the Canadian Armed Forces committing serious lapses of discipline and ultimately finding themselves facing serious charges. Some have gone to prison as a result. These matters all properly related to the charge, as particularized, that the respondent “failed to properly exercise command over his subordinates”.

The Court decided to increase the sentence from a “severe reprimand” to three months imprisonment with dismissal. The Court stated that this sentence was merited by

the perilous circumstances in which this relatively senior officer deliberately pronounced what was an ambiguous, and a dangerously ambiguous, order. He not only pronounced it but essentially repeated it when questioned as to his meaning. While it was found that he had no direct personal connection with the beating and death of [the prisoner], … [the accused] was of a much superior rank as an officer and commander of the whole of 2 Commando. His education, training, and experience and his much greater responsibilities as commanding officer put him on a higher standard of care, a standard which he did not meet … What the evidence did show was the existence of a difficult situation for the maintenance of morale and discipline in which the giving of orders required particular care. Any sentence must provide a deterrent to such careless conduct by commanding officers which in the final analysis is a failure in meeting their responsibilities both to their troops and to Canada.

In the Perišić and Others case in 1997, the District Court of Zadar in Croatia found the accused

guilty of issuing orders … in 1991 … during the armed clashes between the former so-called Yugoslav Army and the armed forces of the Republic of Croatia (National Guard forces, members of the police forces) as the officers in the aforementioned Yugoslav Army, who were in a position to issue orders for combat, orders which violated the [1907 Hague Convention IV] and the annexed [1907 Hague Regulations] (Article 25), Article 3 [of the 1949 Geneva Convention IV] and Articles 13 and 14 [of the 1977 Additional Protocol II] … [The accused] gave and transmitted the orders to the subordinate commanders … All the accused violated the rules of international law, and in a situation of armed conflict, gave orders for attacks … in a manner that cannot be explained by military necessity.

Croatia, District Court of Zadar, Perišić and Others case, Judgment, 24 April 1997.

The Supreme Court of the Republic of Croatia, as the second instance court, concludes that the actions of the accused … satisfy all elements of the criminal offence of War Crimes against Civilians in violation of Article 120(1) of the BCCRC [Basic Criminal Code of the Republic of Croatia].

In its judgment in the DoverCastle case in 1921, the German Reichsgericht held:

It is a military principle that the subordinate is bound to obey the orders of his superiors. This duty of obedience is of considerable importance from the point of view of criminal law. Its consequence is that, when the execution of a service order involves an offence against the criminal law, the superior giving the order is alone responsible.

Germany, Reichsgericht, Dover Castle case, Judgment, 4 June 1921.

Peru

In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether a former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations, including the abduction of two individuals (the so-called SIE Basement Case) and the murder and injury of numerous individuals in Barrios Altos and at the ‘La Cantuta’ university in Lima, all of which were carried out by State officials. The Court held: “Superior Responsibility refers to … commission by omission and generates the responsibility of the individual who commands the direct perpetrator of the crime.”

Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 737.

Charges:

1. Between April and July 1994, in the Kagarama sector in the Commune of Kicukiro, Prefecture of Kigali City (PVK) Préfecture de la Ville de Kigali, in the Republic of Rwanda, as either the perpetrator or accomplice, committed offences constituting the crime of genocide as provided for in the Convention [on the Prevention and Punishment of the Crime of Genocide] of 09/12/1948 ratified by Rwanda on 12/02/1975 with Decree No. 08/75, with these offences punishable under Organic Law No. 08/96 of 30/08/1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].

3. Forming a criminal association with the aim of exterminating the Tutsi, with this offence being contained in and punishable under Articles 281, 282 and 283 of the Rwandan Penal Code Articles 2a and 14a of Organic Law No. 08/96 of 30 August 1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].

4. Murdering a number of people, including [victim MNY], [victim MKR] and his two children, and [victim MKB] and her two children, all of whom were killed because of their ethnicity. This offence is contained in and punishable under Articles 312 and 317 of the Rwanda Penal Code and Articles 2a, b and 14a of Organic Law No. 08/96 of 30 August 1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].

…

Finds that after the death of Habyarimana, the former President of the Republic of Rwanda, Chief Warrant Officer Anaclet Rwahama held meetings aimed at identifying those who they were calling criminals, namely the Tutsis. These meetings took place at the home of a man named Thomas … in participation with Mugenzi, Sindambiwe, Stanislas Butera and Mahame. All of these people were Interahamwe militia leaders in Kagarama as stated by [witness MK] during hearing No. 16 ;

Finds that from 07/04/1994, the Interahamwe repeatedly carried out attacks against the population of Kagarama who, however, fought back and resisted them until the Interahamwe retreated. When the population resisted, they withdrew and retreated to the home of Chief Warrant Officer Anaclet Rwahama in order to return with soldiers armed with rifles;

Finds that the population stood firm against them until 09/04/1994 when Chief Warrant Officer Rwahama sent heavily armed attackers who fired on the population with anti-tank rifles and 60mm mortars from 2pm until around 6pm;

Finds that those who survived these attacks took refuge that night at the CND [Conseil National de Développment - the National Development Council, which was the former parliament of Rwanda]. Many others were injured, but could not flee, so they were killed on the spot, who included, in particular, [victim VH], [victim GN], [victim RM], [A]’s family comprised of his wife and three children, [victim KR] and his daughter named … [victim NS] and many others as contained in minutes of the hearing of Victor Habyalimana from 24/08/1998 … and the facts that Victor presented before the War Council;

Finds that Interahamwe often came to Kagarama where they would meet with soldiers at the home of Chief Warrant Officer Anaclet Rwahama in order to collect equipment, in particular rifles and grenades, before launching an attack;

Finds that the population united together in order to resist their attackers who they had successfully forced to retreat;

Finds that before carrying out further attacks these attackers would meet at the home of Anaclet Rwahama with other Interahamwe, … as explained by Marc MUHAMYANGABO during hearing No. 10;

Finds that between 08/04/1994 and 13/04/1994, Chief Warrant Officer Anaclet Rwahama and Butera apprehended two women and their five children, who they then took away with them while telling them that they were taking them to the CND [Conseil National de Développment - the National Development Council, which was the former parliament of Rwanda], which is where their inkotanyi brothers were;

Finds that they instead took them to a forest where several others had previously been executed, and that a meeting on how to kill them immediately began between Chief Warrant Officer Rwahama and his henchmen as some proposed death by shooting while Chief Warrant Officer Rwahama suggested killing them with a machete;

Finds that the oldest of these children was called [victim NYN];

Finds that during this meeting the mother of [victim NYN] addressed the Interahamwe in the following terms: “You are cowards, you have come to work, and here you are incapable of doing so”. At these words, the Chief Warrant Officer became angry and shot the old lady, and the latter died instantly;

Finds that [victim MKB], another woman who was among the group, spoke in the following terms: “What have you just done? You said that a single bullet was going to be enough for everyone and here you are using it to kill one single person”. Gatera then immediately fired at her, with Chief Warrant Officer Rwahama then ordering the children to lie down on the ground;

Charges:

United States of America

In its judgment in the Dostler case in 1945, in which a German commander was accused of having ordered, in March 1944, the shooting of 15 American POWs in violation of the 1907 Hague Regulations, the US Military Commission at Rome held that commanders were responsible for the orders they gave and therefore if the orders were unlawful they were responsible in law as those who carried out the orders.

United States, Military Commission at Rome, Dostler case, Judgment, 8–12 October 1945.

United States of America

In its judgment in the Von Leeb case (The German High Command Trial) in 1945, the US Military Tribunal at Nuremberg noted that the principles established in the Yamashita case were not entirely applicable, since many of the alleged war crimes were committed in accordance with the policies and orders of their superiors. Noting that field commanders were soldiers and not lawyers, and that they may “presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance”, the Tribunal held:

It is therefore considered that to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which is shown to have [been] known was criminal.

In the Ford v. García case in 2000, a civil lawsuit dealing with acts of torture and extrajudicial killing committed in 1980 in El Salvador, the US Federal Court of Florida gave instructions to the jury as follows:

A commander may be held liable for torture and extrajudicial killing committed by troops under his command under two separate legal theories. The first applies when a commander takes a positive act, i.e., he orders torture and extrajudicial killing or actually participates in it.

In the Trajković case before the District Court of Gnjilan in Kosovo (Federal Republic of Yugoslavia) in 2001, a Kosovo Serb and former chief of police was convicted, inter alia, for having participated in crimes committed against the civilian population in 1999, acts which the District Court found had to be qualified as war crimes under Article 142 of the Penal Code of the Federal Republic of Yugoslavia, as well as crimes against humanity. The Court also found that the acts had been committed “in time of war”.

However, on appeal, the Supreme Court of Kosovo overruled this judgment and ordered that the case be returned to the same court for retrial. The Supreme Court found, inter alia, that:

The state of facts was erroneously established in relation to all charges as there is no direct or conclusive evidence that the accused acted personally or gave orders leading to the alleged crimes … During the retrial, the court of first instance should therefore assess … the issue of the accused’s personal responsibility for participation in the crimes alleged.

In a written opinion in the Trajković case before the District Court of Gnjilan in Kosovo (Federal Republic of Yugoslavia) in 2001, the International Prosecutor for the Office of the Public Prosecutor of Kosovo stated:

This Opinion has concluded that [the accused] was not properly found guilty of any of the crimes under individual liability (the direct giving of orders to commit the crimes …) … Individual responsibility subsumes command responsibility. Because of this “subsuming rule”, we must first evaluate whether individual responsibility might attach, as a finding that a defendant is individually responsible for a war crime or crime against humanity will preclude the need to analyse his culpability under command responsibility. The rule is stated in the statute and decisions of the ICTY.

Yugoslavia, Federal Republic of, International Prosecutor for the Office of the Public Prosecutor of Kosovo, Trajković case, Opinion on Appeals of Convictions, 30 November 2001, Sections IV and IV(A).

In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:

Sections 5(1) and (2) and 7(1) and (2) [of the 2000 Crimes Against Humanity and War Crimes Act] also create offences for a military commander or superior whose breaches of responsibility result in a crime against humanity or war crime.

Canada, Written replies by the Government of Canada to the Committee against Torture concerning the list of issues to be taken up in connection with the sixth periodic report of Canada, 2012, § 177.

Canada

In 2013, Canada’s Department of Foreign Affairs, Trade and Development issued a press release entitled “Canadian Leadership in Addressing Syrian Crisis”, which stated: “‘Assad … is ultimately responsible for any use of chemical weapons that occurs on Syrian territory,’ said [Foreign Affairs Minister] Baird”.

In 2008, a training manual by the prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. The training manual states:

We make a clear distinction between a first level [of responsibility composed] of the direct perpetrators of a crime, and other levels of responsibility [composed of] persons who, despite their distance and indirect link, have a participation in the commission of a crime …

… The various levels of responsibility:

a. The first category is that of direct perpetrators of a crime: a person who attacks a victim and physically commits a crime against the latter. This group includes also the immediate superiors of direct perpetrators if they are directly implicated in the preparation, order, incitation or commission.

b. The second category comprises intermediate perpetrators … including distant perpetrators who … participate with knowledge about the commission of the crimes by the direct perpetrators.

c. The third category is composed of military, police and political leaders, who use their power to [initiate] the crimes committed by the direct perpetrators. They are the ones who conceive [the crime] …

d. The last group is of persons likely to be implicated in the operational chain of serious international crimes, [which is] composed of individuals who, in the exercise of their usual [legal] powers, involuntarily form an unavoidable [link] of the criminal chain. The perpetrators use persons as instruments.

… The modes of “knowledge” by superiors:

One of the domains in which it is very difficult to [gather] evidence concerns the “knowledge” by a suspect or perpetrator of a crime before its commission. Article 30 of the … [1998 ICC] Statute requires evidence beyond reasonable doubt regarding the knowledge and intent of a person accused of a crime. It defines knowledge in paragraph 3 of that article: “knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.

…

The first category of evidence concerns the direct evidence of the knowledge by a superior … This category might include written or oral reports addressed to the person, [and] public or private declarations …

The second category includes evidence which indirectly establishes the knowledge by a suspect at a crucial moment … for example, when it is proven that a superior took a certain measure which indicates without doubt that he must have known about the crime or other important facts related to the crime.

The last category of evidence is composed of elements establishing the effective or supposed knowledge of a reasonable person who were to be in the same position as the suspect. This piece of evidence shows that a superior could not have ignored a particular fact as he had easy access to relevant piece[s] of information.

… The modes of criminal participation:

… There are many ways in which a crime can be perpetrated. When a crime involves several perpetrators, each one may have participated in a different way. This applies notably to international crimes, which are not only caused by those who physically perpetrate them, but also by those who order, incite and support them.

The participation of a person in the commission of a crime might vary according to his or her position and to the nature of the crime.

a. Premeditation

The premeditation of a crime means that a person or several persons conceived the perpetration of the crime, during both its preparation and execution, and that the crime was indeed committed within the outlined framework …

Such premeditation can take different forms according to the level of the different perpetrators. If it concerns a group of direct perpetrators who, for instance, attack a city where they commit several crimes, the premeditation includes activities which preceded the attack, when they discussed and agreed on the manner in which they would attack the city.

If it concerns superiors, they probably ignore the details of the attack against the city, [and] their premeditation consists of exchanges with superiors of the direct perpetrators where they discuss the supplies necessary for the attack and the date when the attack would be launched.

b. Incitement

This mode includes all words, acts and gestures presented in public in view of driving another person to commit a criminal act. Incitement may also include the attitude of superiors who favour a lax environment which might encourage criminal inclinations of their subordinates. According to the case-law of the ICTY, the mens rea of incitement presupposes that the suspect had the intention to provoke the commission of a crime or was perfectly aware that the commission of a crime would be a probable consequence of his or her acts.

…

c. Order

Order as a mode of participation in a crime presupposes the existence of a relation of subordination between the person who gives the order and the person who effectively commits the crime. In this case, mens rea consists of the will of the person giving the order to see such crime being committed, or the knowledge by that person of the high probability that the commission of such crime would result from his or her orders.

The order does not need to be written, nor even verbal …

d. Conspiracy or Joint Criminal Enterprise (JCE)

One of the most remarkable innovations of international criminal law is the … theory of the “joint criminal enterprise” as a mode of criminal participation. It characterises the criminal conduct of high officials which are not directly linked to the crimes committed or their victims. It was conceived by the ICTY … [I]t concerns the commission of acts by a group of persons who are all engaged in the implementation of a collective criminal plan.

This mode of responsibility means that, under certain circumstances, the members of a joint criminal enterprise are not only criminally responsible for the crime which was really intended, but also … for other crimes which result, in a predictable manner, from the joint criminal enterprise.

Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 9–13.

Germany

The Report on the Practice of Germany states:

By giving a criminal order, the superior violates his obligations under the [Law on the Legal Status of Military Personnel] … If the order is executed, the superior can be punished for having committed a war crime according to general rules on perpetration as stated in section 25 of the German Penal Code. If the order has not been followed the superior can be punished according to the concept of incomplete crimes … embodied in section 22 of the German Penal Code.

Report on the Practice of Germany, 1997, Chapter 6.8.

Hungary

In 2004, in its fourth periodic report to the Committee against Torture, Hungary stated:

109. Section 123 of the Criminal Code provides:

(1) A soldier may not be punishable for his act executed upon order, except for the case if he knew that he commits a crime by the execution of that order.

(2) The person giving the order shall be liable for the crime committed upon order as perpetrator.

This provision is to be found in the General Part of the Criminal Code (Act IV of 1978), in chapter VIII, which relates to soldiers. For the purposes of the Criminal Code current members of the armed forces (army, border guards) and the official members of the police, penitentiary institutions and civil security services are to be regarded as soldiers.

…

114. Section 69 [of Act XLIII of 1996] provides as follows:

“Subsection 1: In performing duties members of the armed forces shall comply with the orders and instructions of their superiors unless they would commit criminal offence by complying.

“Subsection 2: With the exception set forth in subsection 1, members of the armed forces shall not deny compliance with unlawful orders or instructions.

“If the unlawfulness of the order or instruction is evident for the member of the armed forces he shall promptly call his superior’s attention to this fact. If upon that the superior still insists on issuing his order he shall put it in writing upon request to this effect by the subordinate. For the execution of unlawful order or instruction that person who has issued the order or the instruction shall be liable.”

…

118. Soldiers (within the meaning of the Criminal Code) who do not comply with orders are in violation of section 354 of the Criminal Code governing disobedience to orders.

120. From these legal provisions it follows that within the circle of persons qualifying as soldiers subordinates shall be under the obligation of complying with orders unless they positively know that compliance would constitute a criminal offence. They shall not be punishable if they do not know that by complying with the order they commit a criminal offence since section 123 of the Criminal Code excludes the punishment of such persons. In that case, the person who has issued the order shall be liable. If the subordinate has recognized that by complying with the order he would commit a criminal offence and nevertheless still complies with the order, he shall be liable for the offence as perpetrator.

According to the Report on the Practice of Pakistan, a decision of the Pakistani Federal Sharia Court “has placed a greater degree of responsibility on a Muslim commander for violations of humanitarian law after summing up various instructions of various Caliphs from Muslim history”.

Report on the Practice of Pakistan, 1998, Chapter 6.2.

45. … The provisions of article 229 of the Penal Code … reads: “When a Public Officer gives orders contrary to a law or regulation, and if he/she justifies that he/she acted according to the orders of his/her chiefs, the latter will not be sanctioned but the chiefs having given the orders shall be sanctioned”. However, if the illegality of the act is a blunder or manifest, the subordinate having executed the order shall be considered as accomplice, the cause of justification provided on the previous paragraph (art. 229, para. 2, of the Penal Code) shall not be applied.

Rwanda reminds civilian and military leaders with command responsibilities that they, too, are accountable for acts of sexual violence committed on their watch. Rwanda will, on a case-by-case basis, support the adoption or extension of targeted sanctions against persistent perpetrators of rape and other forms of sexual violence.

Rwanda, Statement by the Minister of Foreign Affairs and Cooperation of Rwanda before the UN Security Council during a meeting on women and peace and security and a Report of the Secretary-General on sexual violence in conflict, UN Doc. S/PV.6948, 17 April 2013, p. 29.

Slovenia

In 1992, in a note verbale with respect to the implementation of UN Security Council Resolution 780 (1992), Slovenia stated:

Not only those who have directly committed the crimes [“crimes committed against humanity and international humanitarian law”], but also those who gave orders or were otherwise engaged, should be prosecuted as perpetrators. Such consistent approach of the United Nations Commission of Experts would also include the question of the criminal responsibility of numerous high military officers and politicians; this would be in accordance with international criminal law and to date practice, especially the one applied in the Nuremberg trials, following the rule that also those who had given orders should be punished for the committed crimes.

In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:

The framework guaranteeing that members of the armed forces will conduct themselves in accordance with international humanitarian law is constituted by article 55 of the Title on Actions of Commanders [of the Royal Ordinances for the Armed Forces (2009)], which provides that “no commander … may issue orders contrary to law or that constitute a crime”.

Spain, Report on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 5 May 2010, Section 2.

United Kingdom of Great Britain and Northern Ireland

In 1991, a spokesperson of the UK Foreign and Commonwealth Office stated that the Minister of State, Foreign and Commonwealth Office, had summoned the Iraqi ambassador and had reminded him “of the personal liability of those who authorised [the] use [of chemical or biological weapons] and asked that Iraq would not use them”.

United Kingdom, Statement by a spokesperson of the Foreign and Commonwealth Office, 21 January 1991, reprinted in BYIL, Vol. 62, 1991, p. 680.

United Kingdom of Great Britain and Northern Ireland

In 1993, in a “Non-Paper” discussing the 1993 ICTY Statute transmitted to the UN Legal Counsel, the UK Foreign and Commonwealth Office stated: “Under the Geneva Conventions those who order the commission of a grave breach are as responsible for it as the actual perpetrators.”

In 1992, a report on Iraqi war crimes (Desert Shield/Desert Storm) prepared under the auspices of the US Secretary of the Army noted: “Criminal responsibility for violations of the law of war rests with a commander, including the national leadership, who … orders or permits the offenses to be committed.”

In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:

Criminal responsibility for violations of the law of war rests with a commander, including the national leadership, if he (or she):

- Orders or permits the offence to be committed.

…

The crimes committed against Kuwaiti civilians and property, and against third party nationals, are offences for which Saddam Hussein, officials of the Ba’ath Party, and his subordinates bear direct responsibility. However, the principal responsibility rests with Saddam Hussein. Saddam Hussein’s C2 of Iraqi military and security forces appeared to be total and unequivocal. There is substantial evidence that each act alleged was taken as a result of his orders, or was taken with his knowledge and approval, or was an act which he should have known.

United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, pp. 633–634.

In a resolution adopted in 1990 in the context of the Iraqi occupation of Kuwait, the UN Security Council stated:

The Fourth Geneva Convention applies to Kuwait and … as a High Contracting Party to the Convention Iraq is bound to comply fully with all its terms and, in particular, is liable under the Convention in respect of the grave breaches committed by it, as are individuals who … order the commission of grave breaches.

In a resolution adopted in 1992 on violations of humanitarian law in the territory of the former Yugoslavia and in Bosnia and Herzegovina, the UN Security Council reaffirmed that “persons who … order the commission of grave breaches of the [1949 Geneva] Conventions are individually responsible in respect of such breaches”.

In a resolution adopted in 1992 establishing the UN Commission of Experts to examine and analyse evidence of grave breaches of the Geneva Conventions and other violations of IHL in the former Yugoslavia, the UN Security Council recalled its Resolution 764 (1992) in which it had reaffirmed that “persons who … order the commission of grave breaches of the [1949 Geneva] Conventions are individually responsible in respect of such breaches”.

In a resolution adopted in 1992 on the situation in Somalia, the UN Security Council:

Strongly condemns all violations of international humanitarian law occurring in Somalia, including in particular the deliberate impeding of the delivery of food and medical supplies essential for the survival of the civilian population, and affirms that those who … order the commission of such acts will be held individually responsible in respect of such acts.

In a resolution adopted 1993 on the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), the UN Security Council:

Recalling paragraph 10 of its resolution 764 (1992) of the 13 July 1992, in which it reaffirmed that … persons who … order the commission of grave breaches of the [1949 Geneva] Conventions are individually responsible in respect of such breaches,

…

Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for [violations of international humanitarian law].

In a resolution adopted in 1993 on the former Yugoslavia, the UN Security Council reaffirmed that “those who … order or have ordered the commission of [massive, organized and systematic detention and rape of women] will be held individually responsible in respect of such acts”.

In a resolution adopted in 1998 on the situation in Afghanistan, the UN Security Council reaffirmed that “persons who … order the commission of grave breaches of the [1949 Geneva] Conventions are individually responsible in respect of such breaches”.

In 1993, in a statement by its President following the death of persons detained by Bosnian Serb forces when the vehicle transporting them for work at the front was ambushed, the UN Security Council condemned all violations of the 1949 Geneva Conventions III and IV and reaffirmed that “those who … order the commission of such acts will be held personally responsible”.

In July 1995, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council reaffirmed “its condemnation of all violations of international humanitarian law” and reiterated “to all concerned that those who have committed or ordered the commission of such acts will be held individually responsible in respect of such acts”.

In October 1995, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council reaffirmed that “those who have committed or have ordered the commission of violations of international humanitarian law will be held individually responsible for them”.

In 1998, in a statement by its President on the situation in the Democratic Republic of the Congo, the UN Security Council reaffirmed that “all persons who … order the commission of grave breaches of the [Geneva Conventions of 1949 and the Additional Protocols of 1977] are individually responsible in respect of such breaches”.

In a resolution adopted in 1995 on the former Yugoslavia, the UN General Assembly, reaffirming that persons who committed violations of IHL would be held personally responsible and accountable, pointed out that:

The leadership in territories under the control of Serbs in the Republic of Bosnia and Herzegovina and formerly Serb-held areas of the Republic of Croatia, the commanders of Serb paramilitary forces and political and military leaders in the Federal Republic of Yugoslavia (Serbia and Montenegro) bear primary responsibility for most of those violations [of human rights and IHL].

In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:

Stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment should be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed.

In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:

Stresses that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed, and takes note in this respect of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) as a useful tool in efforts to combat torture.

In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:

Stresses that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, and that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible, brought to justice and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed.

In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:

Stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment should be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detentionwhere the prohibited act is found to have taken place.

In a resolution adopted in 2004 entitled “Torture and other cruel, inhuman or degrading treatment or punishment”, the UN Commission on Human Rights:

Stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment should be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have taken place, notes in this respect the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) annexed to Commission resolution 2000/43 of 20 April 2000, and General Assembly resolution 55/89 of 4 December 2000 as a useful tool in efforts to combat torture, and reiterates its request tothe Special Rapporteur, in the normal course of his work, to solicit views from Governments and nongovernmental organizations.

In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:

Stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed, and takes note in this respect of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) as a useful tool in efforts to combat torture.

In a resolution adopted in 2006 on the grave situation of human rights in Lebanon caused by Israeli military operations, the UN Human Rights Council:

Recalling the commitments of the High Contracting Parties to the Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 8 June 1977,

Reaffirming that each High Contracting Party to the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) is under obligation to take action against persons alleged to have committed or to have ordered the commission of grave breaches of the Convention, and recalls the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.

In 1993, in his report on the draft ICTY Statute, the UN Secretary-General stated: “A person in a position of superior authority should … be held individually responsible for giving the unlawful order to commit a crime under the [1993 ICTY Statute].”

UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)

In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) recalled that it had addressed the issue of command responsibility in its first interim report as follows:

A person who gives the order to commit a war crime or crime against humanity is equally guilty of the offence with the person actually committing it. This principle, expressed already in the Geneva Conventions of 1949, applies to both the military superiors, whether of regular or irregular armed forces, and to civilian authorities.

UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994)

In 1994, in its final report on grave violations of IHL in Rwanda, the UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994) noted:

It is a well-established principle of international law that a person who orders a subordinate to commit a violation for which there is individual responsibility is as responsible as the individual that actually carries it out.

It referred to the 1950 Nuremberg Principles, the 1948 Genocide Convention, Article 86 of the 1977 Additional Protocol I and the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind.

In its judgment in the Akayesu case in 1998, the ICTR quoted Article 6(1) of the 1994 ICTR Statute and stated:

472. … Thus, in addition to responsibility as principal perpetrator, the Accused can be held responsible for the criminal acts of others where he … orders them …

473. Thus, Article 6(1) covers various stages of the commission of a crime, ranging from its initial planning to its execution, through its organization. However, the principle of individual criminal responsibility as provided for in Article 6(1) implies that the planning or preparation of the crime actually leads to its commission. Indeed, the principle of individual criminal responsibility for an attempt to commit a crime obtained only in case of genocide. Conversely, this would mean that with respect to any other form of criminal participation and, in particular, those referred to in Article 6(1), the perpetrator would incur criminal responsibility only if the offence were completed.

474. Article 6(1) thus appears to be in accord with the Judgments of the Nuremberg Tribunal which held that persons other than those who committed the crime, especially those who ordered it, could incur individual criminal responsibility.

…

483. By ordering the commission of one of the crimes referred to in Articles 2 to 4 of the [1994 ICTR] Statute, a person also incurs individual criminal responsibility. Ordering implies a superior-subordinate relationship between the person giving the order and the one executing it. In other words, the person in a position of authority uses it to convince another to commit an offence.

ICTR, Akayesu case, Judgment, 2 September 1998, §§ 472–474 and 483.

[emphasis in original]

International Criminal Tribunal for Rwanda

In its judgment in the Kayishema and Ruzindana case in 1999, the ICTR, with regard to Article 6(3) of the 1994 ICTR Statute and a possible responsibility thereunder of one of the accused, a former prefet, stated:

Where it can be shown that the accused was the de jure or de facto superior and that pursuant to his orders the atrocities were committed, then the Chamber considers that this must suffice to found command responsibility … If the Chamber is satisfied beyond a reasonable doubt that the accused ordered the alleged atrocities then it becomes unnecessary to consider whether he tried to prevent; and irrelevant whether he tried to punish.

ICTR, Kayishema and Ruzindana case, Judgment, 21 May 1999, § 223.

International Criminal Tribunal for Rwanda

In its judgment in the Semanza case in 2003, the ICTR Trial Chamber considered the ICTR jurisprudence with regard to individual criminal responsibility for ordering war crimes to be committed under Article 6(1) of the 1994 ICTR Statute:

“Ordering” refers to a situation where an individual has a position of authority and uses that authority to order – and thus compel – another individual, who is subject to that authority, to commit a crime. Criminal responsibility for ordering the commission of a crime under the Statute implies the existence of a superior-subordinate relationship between the individual who gives the order and the one who executes it.

ICTR, Semanza case, Judgment, 15 May 2003, § 382.

In its judgment in 2005, the ICTR Appeals Chamber considered the Prosecution’s argument that the Trial Chamber had committed a legal error by making the Appellant’s liability for “ordering” dependent upon proof of a superior-subordinate relationship:

361. Thus, in its definition, the Trial Chamber did not require proof of a formal superior-subordinate relationship for the Appellant to be found responsible for ordering. All that it required was the implied existence of a superior-subordinate relationship. The Trial Chamber’s approach in this case is consistent with recent jurisprudence of the Appeals Chamber. As recently clarified by the ICTY Appeals Chamber in Kordićand Čerkez, the actus reus of “ordering” is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order. The Trial Chamber thus committed no legal error in its enunciation of the elements of ordering.

362. Bearing in mind that the Trial Chamber correctly defined the elements of ordering, the Appeals Chamber does not consider that the Trial Chamber thereafter required the Prosecution to furnish proof of a formal superior-subordinate relationship for the Appellant to be convicted of ordering. That being said, in the view of the Appeals Chamber, the evidence before the Trial Chamber in relation to Musha church does not support the Trial Chamber’s finding that the Appellant did not possess any form of authority over the attackers.

363. It should be recalled that authority creating the kind of superior-subordinate relationship envisaged under Article 6(1) of the [1994 ICTR] Statute for ordering may be informal or of a purely temporary nature. Whether such authority exists is a question of fact. In the present case, the evidence is that the Appellant directed attackers, including soldiers and Interahamwe, to kill Tutsi refugees who had been separated from the Hutu refugees at Musha church. According to the Trial Chamber, the refugees “were then executed on the directions” of the Appellant. On these facts, no reasonable trier of fact could hold otherwise than that the attackers to whom the Appellant gave directions regarded him as speaking with authority. That authority created a superior-subordinate relationship which was real, however informal or temporary, and sufficient to find the Appellant responsible for ordering under Article 6(1) of the Statute.

ICTR, Semanza case, Judgment on Appeal, 20 May 2005, §§ 361–363.

International Criminal Tribunal for Rwanda

In its judgment in the Kajelijeli case in 2003, the ICTR Trial Chamber considered the matter of the accused’s individual criminal responsibility for “ordering” under Article 6(1) of the 1994 ICTR Statute:

“[O]rdering”, implies a situation in which an individual with a position of authority uses such authority to impel another, who is subject to that authority, to commit an offence. No formal superior-subordinate relationship is required for a finding of “ordering” so long as it is demonstrated that the accused possessed the authority to order.

ICTR, Kajelijeli case, Judgment, 1 December 2003, § 763.

International Criminal Tribunal for Rwanda

In its judgment in the Bagilishema case in 2001, the ICTR Trial Chamber noted:

27. Article 6 defines the modalities of participation that give rise to individual responsibility for crimes under the [1994 ICTR] Statute.

…

1.1 Responsibility under Article 6(1) of the Statute

…

Planning, instigating, ordering

30. … The principle of criminal responsibility applies also to an individual who is in a position of authority, and who uses his or her authority to order, and thus compel a person subject to that authority, to commit a crime.

31. Proof is required that whoever planned, instigated, or ordered the commission of a crime possessed criminal intent, that is, that he or she intended that the crime be committed.

ICTR, Bagilishema case, Judgment, 7 June 2001, §§ 27 and 30–31.

International Criminal Tribunal for Rwanda

In its judgment in the Kamuhanda case in 2004, the ICTR Trial Chamber stated regarding ordering as a form of direct individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:

“Ordering”, implies a situation in which an individual with a position of authority uses such authority to impel another, who is subject to that authority, to commit an offence. No formal superior-subordinate relationship is required for a finding of “ordering” so long as it is demonstrated that the accused possessed the authority to order. The position of authority of the person who gave an order may be inferred from the fact that the order was obeyed.

ICTR, Kamuhanda case, Judgment, 22 January 2004, § 594.

In its judgment in 2005, the ICTR Appeals Chamber clarified the relation between “ordering” as a form of direct individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute and the individual criminal responsibility of superiors under Article 6(3) of the Statute:

75. The Appeals Chamber notes that superior responsibility under Article 6(3) of the [1994 ICTR] Statute is a distinct mode of responsibility from individual responsibility for ordering a crime under Article 6(1) of the Statute. Superior responsibility under Article 6(3) of the Statute requires that the accused exercise “effective control” over his subordinates to the extent that he can prevent them from committing crimes or punish them after they committed the crimes. To be held responsible under Article 6(1) of the Statute for ordering a crime, on the contrary, it is sufficient that the accused have authority over the perpetrator of the crime, and that his order have a direct and substantial effect on the commission of the illegal act. In the Semanza Appeal Judgement, the Appeals Chamber made clear that no formal superior-subordinate relationship is required.

76. There is no requirement that an order be given in writing or in any particular form, and the existence of an order may be proven through circumstantial evidence… [T]he factual finding that the Appellant gave the order to start the massacre, and that this order was obeyed, was not unreasonable. The Appeals Chamber finds that a reasonable trier of fact could conclude from the fact that the order to start the massacre was directly obeyed by the attackers that this order had direct and substantial effect on the crime, and that the Appellant had authority over the attackers, regardless of their origin.

In its judgment in the Gacumbitsi case in 2004, the ICTR Trial Chamber stated regarding “ordering” as a form of individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:

281. “Ordering” refers to a situation where an individual in a position of authority uses such authority to compel another individual to commit an offence. On this issue, the two ad hoc Tribunals have ruled differently. One has held that ordering implies the existence of a superior-subordinate relationship between the individual who gives the order and the one who executes it [ICTR, Semanza case,Judgement, § 382; Ntagerura and others case, Judgement, § 624]. The other has held that ordering does not necessarily imply the existence of such a formal superior-subordinate relationship [ICTY, Kordić and Čerkez case, Judgement, § 388. See also ICTR, Kajelijeli case, Judgement, § 763].

282. The Trial Chamber is of the opinion that the issue must be determined in light of the circumstances of the case. The authority of an influential person can derive from his social, economic, political or administrative standing, or from his abiding moral principles. Such authority may also be de jure or de facto. When people are confronted with an emergency or danger, they can naturally turn to such influential person, expecting him to provide a solution, assistance or take measures to deal with the crisis. When he speaks, everyone listens to him with keen interest; his advice commands overriding respect over all others and the people could easily see his actions as an encouragement. Such words and actions are not necessarily culpable, but can, where appropriate, amount to forms of participation in crime, such as “incitement” and “aiding and abetting” provided for in Article 6(1) of the [1994 ICTR] Statute. In certain circumstances, the authority of an influential person is enhanced by a lawful or unlawful element of coercion, such as declaring a state of emergency, the de facto exercise of an administrative function, or even the use of threat or unlawful force. The presence of a coercive element is such that it can determine the way the words of the influential person are perceived. Thus, mere words of exhortation or encouragement would be perceived as orders within the meaning of Article 6(1) referred to above. Such a situation does not, ipso facto, lead to the conclusion that a formal superior-subordinate relationship exists between the person giving the order and the person executing it. As a matter of fact, instructions given outside a purely informal context by a superior to his subordinate within a formal administrative hierarchy, be it de jure or de facto, would also be considered as an “order” within the meaning of Article 6(1) of the Statute.

ICTR, Gacumbitsi case, Judgment, 17 June 2004, §§ 281–282.

In its judgment in 2006, the ICTR Appeals Chamber affirmed as regards the requirements of “ordering” under Article 6(1) of the 1994 ICTR Statute:

181. The Appeals Chamber agrees with the Prosecution that ordering does not require the existence of a formal superior-subordinate relationship. But the Trial Chamber did not misapprehend the law in this respect …

182. … [A]fter finding that no formal superior-subordinate relationship existed, the Trial Chamber proceeded to consider whether, under the circumstances of the case, the Appellant’s statements nevertheless were perceived as orders. This is in accordance with the most recent judgements of the Appeals Chamber. In the Semanza Appeal Judgement, the Appeals Chamber explained:

As recently clarified by the ICTY Appeals Chamber in Kordi[ć] and [Č]erkez, the actus reus of “ordering” is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order.

The Appeals Chamber notes that this element of “ordering” is distinct from that required for liability under Article 6(3) of the [1994 ICTR] Statute, which does require a superior-subordinate relationship (albeit not a formal one but rather one characterized by effective control). Ordering requires no such relationship – it requires merely authority to order, a more subjective criterion that depends on the circumstances and the perceptions of the listener.

ICTR, Gacumbitsi case, Judgment on Appeal, 7 July 2006, §§ 181–182.

International Criminal Tribunal for Rwanda

In its judgment in the Imanishimwe case in 2006, the ICTR Appeals Chamber reaffirmed the following as constitutive elements of “ordering” under Article 6(1) of the 1994 ICTR Statute:

(1) the material element (or actus reus) is established when a person uses his position of authority to order another person to commit a crime;

(2) the requisite mental element (or mens rea) is established when such person acted with direct intent to give the order.

ICTR, Imanishimwe case, Judgment on Appeal, 7 July 2006, § 365.

International Criminal Tribunal for Rwanda

In its judgment in the Mpambara case in 2006, the ICTR Trial Chamber noted:

The actus reusof ordering is that a person in a position of authority instructs another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of the part of the accused that would compel another to commit a crime in following the accused’s order.

ICTR, Mpambara case, Judgment, 11 September 2006, § 19.

International Criminal Tribunal for Rwanda

In its judgment in the Muvunyi case in 2006, the ICTR Trial Chamber noted:

459. The principle of individual responsibility for serious violations of international criminal law is one of the key indicators of a paradigm shift from a view of international law as law exclusively made for and by States, to a body of rules with potential application to individuals. It is now recognized that the principle of individual responsibility for serious violations of international law, affirmed in Article 6(1) of the [1994 ICTR] Statute, is reflective of customary international law. [ICTY, Mucić case, Judgement, 16 November 1998, § 321 and sources cited therein] Indeed, it has been established since the Versailles Treaty and especially the Nuremberg and Tokyo trials, that crimes under international law are physically committed by individuals and that irrespective of their official status, only by punishing such individuals for their criminal conduct, can the fundamental values of international law have meaning and efficacy.

Article 6(1)

460. The jurisprudence of the ad-hoc Tribunals has clearly established that criminal liability under Article 6(1) is incurred not only by individuals who physically commit a crime, but also by those who are accomplices because they participated in or otherwise contributed to the commission of a crime by others. Such forms of participation include planning, instigating, ordering, or aiding and abetting the principal offender’s actions. Moreover, the participation of the Accused must have substantially contributed to, or have had a substantial effect on, the completion of the crime. The Chamber notes that accomplice liability under Article 6(1) is different from the substantive crime of complicity in genocide under Article 2(3)(e) of the Statute.

461. The mental element required for responsibility under Article 6(1) depends on the form of participation alleged by the Prosecution. An accused who is alleged to have “committed” an offence, in the sense of direct physical perpetration, must possess the requisite mens rea for the underlying offence. Where it is alleged that the accused participated as an accomplice in the commission of a crime by another, his responsibility under Article 6(1) will depend upon whether the Prosecution proves that he was aware of the mens rea of the principal perpetrator. The requirement that the Accused must have knowledge of, rather than share, the principal perpetrator’s mens rea, also applies to a charge of aiding and abetting genocide.

…

Ordering

467. Ordering under Article 6(1) requires that a person in a position of authority uses that position to issue a binding instruction to or otherwise compel another to commit a crime punishable under the Statute. In Semanza, the Appeals Chamber held that “no formal superior-subordinate relationship between the Accused and the perpetrator is required” to establish the actus reusof “ordering” under Article 6(1). However, proof of such a relationship may be evidentially relevant to show that the person alleged to have issued the order, was in a position of authority.

468. The responsibility for ordering the commission of a crime could also be proved by circumstantial evidence, but as required by the jurisprudence, the Chamber will thoroughly evaluate such evidence and treat it with caution.

In the Bagaragaza case before the ICTR in 2006, the accused was a senior public official, who was director general of the government office controlling the Rwandan tea industry, a member of the prefectural committee of the Mouvement républicain national pour le développement et la démocratie (MRND) in Gisenyi prefecture, and honorary president of the Interahamwe (MRND youth wing) militia in Kabuga in Kigali-rural prefecture.

ICTR, Bagaragaza case, Amended Indictment, 1 December 2006, § 2.

On his direct individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute, the Prosecution stated:

[T]he Accused … is responsible for the crime of killing and causing violence to health and physical or mental well-being as serious violations of Article 3 Common to the Geneva Conventions of 1949 and Additional Protocol II of 1977, because he instigated, ordered, committed and aided and abetted in the preparation and execution of the crime …

ICTR, Bagaragaza case, Amended Indictment, 1 December 2006, § 25.

International Criminal Tribunal for Rwanda

In its judgment in the Seromba case in 2006, the ICTR Trial Chamber stated regarding the interpretation of “ordering” under Article 6(1) of the 1994 ICTR Statute:

Participation [in an offence] by “ordering” presupposes that a person in a position of authority orders another person to commit an offence. This mode of participation implies the existence of a superior-subordinate relationship between the person who gives the order and the one who executes it. A formal superior-subordinate relationship is, however, not required. A superior-subordinate relationship is established by showing a formal or informal hierarchical relationship involving an accused’s effective control over the direct perpetrators.

ICTR, Seromba case, Judgment, 13 December 2006, § 305.

In its judgment in 2008, the Appeals Chamber found that “the Trial Chamber erred in law when it considered effective control as an element necessary to prove that [the appellant] participated in the crimes by ‘ordering’, within the meaning of Article 6(1) of the [1994 ICTR] Statute”.

ICTR, Seromba case, Judgment on Appeal, 12 March 2008, § 202.

International Criminal Tribunal for Rwanda

In its judgment on appeal in the Nahimana case in 2007, the ICTR Appeals Chamber stated:

With respect to ordering, a person in a position of authority may incur responsibility for ordering another person to commit an offence, if the person who received the order actually proceeds to commit the offence subsequently. Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.

ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, § 481.

International Criminal Tribunal for Rwanda

In the Karera case, the accused, who was sub-prefect and then prefect of Kigali prefecture in 1994, was convicted of genocide and the crimes against humanity of murder and extermination. In its judgment in 2009, the ICTR Appeals Chamber considered some of the elements of liability for ordering crimes under Article 6(1) of the 1994 ICTR Statute, stating:

[A] person in a position of authority may incur responsibility for ordering another person to commit an offence if the person who received the order subsequently commits the offence. Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is committed by the person who received the order. No formal superior-subordinate relationship between the accused and the perpetrator is required; it is sufficient that there is proof of some position of authority on the part of the accused that would compel the perpetrator to commit a crime pursuant to the accused’s order.

ICTR, Karera case, Judgment on Appeal, 2 February 2009, § 211.

[footnotes in original omitted]

International Criminal Tribunal for the former Yugoslavia

In the indictment in the Mrkšić case before the ICTY in 1996, the Prosecutor stated, with respect to the responsibility of the accused for the killing of 260 persons:

Each of the accused is individually responsible for the crimes alleged against him in this indictment pursuant to Article 7(1) of the [1993 ICTY] Statute. Individual criminal responsibility includes committing, planning, instigating, ordering or otherwise aiding and abetting in the planning, preparation or execution of any crimes referred to in Articles 2 to 5 of the Tribunal Statute.

ICTY, Mrkšić case, Initial Indictment, 26 October 1995, § 23.

International Criminal Tribunal for the former Yugoslavia

In the review of the indictment in the Martić case in 1996, the ICTY Trial Chamber stated:

20. … The principle of criminal responsibility, restated in Article 7(1) of the [1993 ICTY Statute], covers the person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime. International law thus permits the prosecution of individuals who acted in an official capacity, as stated in Article 7(2) of the Statute.

21. The Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence ratione materiae or who knowingly refrain from preventing or punishing the perpetrators of such crimes … Since the criminal intent is formulated at a high level of the administrative hierarchy, the violation of the norm of international humanitarian law is part of a system of criminality specifically justifying the intervention of the Tribunal.

ICTY, Martić case, Review of the Indictment, 8 March 1996, §§ 20–21.

International Criminal Tribunal for the former Yugoslavia

In the review of the indictments in the Karadžić and Mladić case in 1996, the ICTY Trial Chamber stated, with respect to the accused’s possible responsibility under Article 7(1) of the 1993 ICTY Statute:

65. According to the two indictments, the offences charged were committed by the military and police personnel obeying the orders of the Bosnian Serb administration. Both indictments indicate that the perpetrators were acting under the control, command and direction of Radovan KARADŽIĆ and Ratko MLADIĆ. All of the charges would therefore involve the individual criminal responsibility of those in superior authority.

…

83. The evidence and testimony tendered all concur in demonstrating that Radovan KARADŽIĆ and Ratko MLADIĆ would not only have been informed of the crimes allegedly committed under their authority, but also and, in particular, that they exercised their power in order to plan, instigate, order or otherwise aid and abet in the planning, preparation or execution of the said crimes.

ICTY, Karadžić and Mladić case, Review of the Indictments, 11 July 1996, §§ 65 and 83.

International Criminal Tribunal for the former Yugoslavia

In the review of the indictment in the Rajić case in 1996, the ICTY Trial Chamber stated that the accused “is charged with ordering” several grave breaches of the 1949 Geneva Conventions and violations of the laws and customs of war. It also noted that “in the alternative, he is charged with … command responsibility” for the same acts. It further stated that “there is proof [the accused] knew about the attack and actually ordered it”.

Based on the evidence produced and the testimony heard, the Trial Chamber is satisfied that the Prosecutor has presented reasonable grounds for believing that, on 23 October 1993, the civilian village of Stupni Do was attacked by HVO [Croatian Defence Council] forces who were acting with [the accused’s] aid and assistance or on his orders. The attack appears to have been aimed at the civilian population of the village, many of whom were killed during it. The village, which had no military significance, was devastated and the civilian property in it was destroyed.

ICTY, Rajić case, Review of the Indictment, 13 September 1996, § 71.

International Criminal Tribunal for the former Yugoslavia

In its judgment in the Mucić case in 1998, the ICTY Trial Chamber, examining individual criminal responsibility under Article 7(3) of the 1993 ICTY Statute, stated:

333. That military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates is a well-established norm of customary and conventional international law. This criminal liability may arise … out of the positive acts of the superior (sometimes referred to as “direct” command responsibility) … Thus, a superior may be held criminally responsible … for ordering, instigating or planning criminal acts carried out by his subordinates …

334. … The criminal liability of a superior for positive acts follows from general principles of accomplice liability, as set out in the discussion of Article 7(1) [of the 1993 ICTY Statute] above.

ICTY, Mucić case, Judgment, 16 November 1998, §§ 333–334.

International Criminal Tribunal for the former Yugoslavia

In the Galić case before the ICTY in 1999, the accused, a senior officer in the Army of the Republika Srpska (VRS), was charged with violations of the laws or customs of war and with crimes against humanity for his alleged role in events in Sarajevo in 1992–1994.

ICTY, Galić case, Indictment, 26 March 1999, Counts 1–7.

On the accused’s individual criminal responsibility, the Prosecution stated:

[The accused] bears individual criminal responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting, in the planning, preparation or execution of the campaign of shelling and sniping against the civilian population of Sarajevo and the acts set forth below by the forces and persons under his command, pursuant to Article 7(1) of the Statute of the Tribunal.

ICTY, Galić case, Indictment, 26 March 1999, § 10.

In its judgment in 2003, the ICTY Trial Chamber stated regarding “ordering” as a basis of individual criminal responsibility under Article 7(1) of the 1993 ICTY Statute:

167. The Indictment, in describing the Accused’s responsibility, makes reference to each head of responsibility in Article 7(1) [of the 1993 ICTY Statute]. In the Prosecution’s Final Trial Brief reference is made to “ordering” as the basis of responsibility. It is within the Trial Chamber’s discretion to convict, if at all, the Accused under the appropriate head of responsibility within the limits set by the Indictment and insofar as the evidence permits.

168. … “Ordering” means a person in a position of authority using that authority to instruct another to commit an offence. The order does not need to be given in any particular form…

169. In the Majority’s opinion, a superior may be found responsible under Article 7(1) where the superior’s conduct had a positive effect in bringing about the commission of crimes by his or her subordinates, provided the mens rea requirements for Article 7(1) responsibility are met. Under Article 7(3) … the subordinate perpetrator is not required to be supported in his conduct, or to be aware that the superior officer knew of the criminal conduct in question or that the superior did not intend to investigate or punish the conduct. More generally, there is no requirement of any form of active contribution or positive encouragement, explicit or implicit, as between superior and subordinate, and no requirement of awareness by the subordinate of the superior’s disposition, for superior liability to arise under Article 7(3). Where, however, the conduct of the superior supports the commission of crimes by subordinates through any form of active contribution or passive encouragement (stretching from forms of ordering through instigation to aiding and abetting, by action or inaction amounting to facilitation), the superior’s liability may be brought under Article 7(1) if the necessary
mens rea is a part of the superior’s conduct. In such cases the subordinate will most likely be aware of the superior’s support or encouragement, although that is not strictly necessary. In the Majority’s view, the key point in all of this is that a superior with a guilty mind may not avoid Article 7(1) responsibility by relying on his or her silence or omissions or apparent omissions or understated participation or any mixture of overt and non-overt actions, where the effect of such conduct is to commission crimes by subordinates.

…

171. Proof of all forms of criminal responsibility can be given by direct or circumstantial evidence. For instance, “ordering” – a form of responsibility emphasized by the Prosecution in its Final Trial Brief – may be inferred from a variety of factors, such as the number of illegal acts, the number, identity and type of troops involved, the effective command and control exerted over these troops, the logistics involved, the widespread occurrence of the illegal acts, the tactical tempo of operations, the modus operandi of similar acts, the officers and staff involved, the location of the superior at the time and the knowledge of that officer of criminal acts committed under his command.

172. In order for individual criminal responsibility to ensue, conduct must be coupled with intent. The requisite mens rea for all forms of participation under Article 7(1) is that the accused “acted in the awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct.” The mens rea of the accused need not be explicit but may be inferred from the circumstances.

ICTY, Galić case, Judgment, 5 December 2003, §§ 167–169 and 171–172.

The Trial Chamber, by majority decision, found the accused “guilty of having ordered the crimes proved at trial” under Article 7(1) of the 1993 ICTY Statute; it therefore did “not deem it necessary to pronounce on whether [the accused was] cumulatively guilty under Article 7(3) of the Statute”.

ICTY, Galić case, Judgment, 5 December 2003, §§ 749–750.

The accused was sentenced to 20 years’ imprisonment.

In its judgment in 2006, the ICTY Appeals Chamber stated regarding perpetration by omission and ordering under Article 7(1) of the 1993 ICTY Statute:

The Appeals Chamber recalls that the actus reus of ordering has been defined as a person in a position of authority instructing another person to commit an offence; a formal superior-subordinate relationship between the accused and the actual physical perpetrator not being required inter alia: Kordić and Čerkez Appeal Judgement, § 28]. The Appeals Chamber finds that the very notion of “instructing” requires a positive action by the person in a position of authority [Blaškić Appeal Judgement, § 660]. The failure to act of a person in a position of authority, who is in a superior-subordinate relationship with the physical perpetrator, may give rise to another mode of responsibility under Article 7(1) of the [1993 ICTY] Statute or superior responsibility under Article 7(3) of the Statute. However, the Appeals Chamber cannot conceive of a situation in which an order would be given by an omission, in the absence of a prior positive act. The Appeals Chamber concludes that the omission of an act cannot equate to the mode of liability of ordering under Article 7(1) of the Statute.

ICTY, Galić case, Judgment on Appeal, 30 November 2006, § 176.

However, as regards proof of ordering, the Appeals Chamber noted that “the mode of liability of ordering can be proven, like any other mode of liability, by circumstantial or direct evidence, taking into account evidence of acts or omissions of the accused”.

ICTY, Galić case, Judgment on Appeal, 30 November 2006, § 178.

In its judgment in 2006, the Appeals Chamber, by majority decision, upheld the Trial Chamber’s verdict, but quashed the sentence of 20 years’ imprisonment and imposed a sentence of life imprisonment.

In its judgment in the Blaškić case in 2000, the ICTY Trial Chamber, commenting upon a possible responsibility of the accused under Article 7(1) of the 1993 ICTY Statute and referring to the judgment of the ICTR in the Akayesu case, stated:

It is not necessary that an order be given in writing or in any particular form. It can be explicit or implicit. The fact that an order was given can be proved through circumstantial evidence.

…

The Trial Chamber agrees that an order does not need to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence. Furthermore, what is important is the commander’s mens rea, not that of the subordinate executing the order. Therefore, it is irrelevant whether the illegality of the order was apparent on its face.

ICTY, Blaškić case, Judgment, 3 March 2000, §§ 281–282.

International Criminal Tribunal for the former Yugoslavia

In its judgment in the Kordić and Čerkez case in 2000, the ICTY Trail Chamber II stated:

Article 7(1) [of the 1993 ICTY Statute] is concerned with persons directly responsible for planning, instigating, ordering, committing, or aiding and abetting in the planning, preparation or execution of a crime. Thus, both the individual who himself carries out the unlawful conduct and his superior who is involved in the conduct not by physical participation, but for example by ordering or instigating it, are covered by Article 7(1). For instance, a superior who orders the killing of a civilian may be held responsible under Article 7(1), as might a political leader who plans that certain civilians or groups of civilians should be executed, and passes these instructions on to a military commander. The criminal responsibility of such superiors, either military or civilian, in these circumstances is personal or direct, as a result of their direct link to the physical commission of the crime. The criminal responsibility of a superior for such positive acts, except where the superior orders the crime in which case he may be more appropriately referred to as primarily responsible for its commission, may be regarded as “follow(ing) from general principles of accomplice liability”.

ICTY, Kordić and Čerkez case, Judgment, 26 February 2001, § 367.

The ICTY Trial Chamber went on to say:

The Trial Chamber is of the view that no formal superior-subordinate relationship is required for a finding of “ordering” so long as it is demonstrated that the accused possessed the authority to order. The Trial Chamber agrees with the Blaškić finding that there is no requirement that an order be given in writing or in any particular form, and that the existence of an order may be proven through circumstantial evidence. In relation to ordering, the Blaškić Trial Chamber further held that the order “does not need to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence. Furthermore, what is important is the commander’s mens rea, not that of the subordinate executing the order.

ICTY, Kordić and Čerkez case, Judgment, 26 February 2001, § 388.

International Criminal Tribunal for the former Yugoslavia

In its judgment in the Krstić case in 2001, the ICTY Trial Chamber stated:

The facts pertaining to the commission of a crime may establish that the requirements for criminal responsibility under both Article 7(1) and Article 7(3) [of the 1993 ICTY Statute] are met. However, the Trial Chamber adheres to the belief that where a commander participates in the commission of a crime through his subordinates, by “planning”, “instigating” or “ordering” the commission of the crime, any responsibility under Article 7(3) is subsumed under Article 7(1). The same applies to the commander who incurs criminal responsibility under the joint criminal enterprise doctrine through the physical acts of his subordinates.

ICTY, Krstić case, Judgment, 2 August 2001, § 605.

[emphasis in original]

International Criminal Tribunal for the former Yugoslavia

In the Plavšić case before the ICTY in 2002, the accused, Biljana Plavšić, a member of the Bosnian Serb leadership, was charged with genocide, complicity in genocide, crimes against humanity (murder, extermination, deportation, persecutions on political, racial and religious grounds, other inhumane acts) and violations of the laws or customs of war (murder), for her alleged role in the intended “permanent removal, by force or other means, of Bosnian Muslim, Bosnian Croat or other non-Serb inhabitants from large areas of Bosnia and Herzegovina”.

With regard to the accused’s individual criminal responsibility, the Prosecutor stated:

[The accused is] individually criminally responsible pursuant to Article 7(1) of the [1993 ICTY Statute] for the crimes referred to in Articles 3, 4, and 5 of the Statute as alleged in this indictment, which [she] planned, instigated, ordered, committed or in whose planning, preparation or execution [she] otherwise aided and abetted.

When the accused pleaded guilty to the charge of persecutions, the Trial Chamber, “satisfied … that there was a sufficient factual basis for the crime and the accused’s participation in it”, entered a finding of guilt on that charge; the remaining charges against her were dismissed.

In the Krajišnik case before the ICTY in 2002, the accused, Momčilo Krajišnik, a member of the Bosnian Serb leadership, was charged with genocide and complicity in genocide, punishable under Article 4(3)(a) and (e) of the 1993 ICTY Statute, crimes against humanity, punishable under Article 5 of the 1993 ICTY Statute, and violations of the laws or customs of war, punishable under Article 3 of the 1993 ICTY Statute, for his alleged role in the intended “permanent removal, by force or other means, of Bosnian Muslim, Bosnian Croat or other non-Serb inhabitants from large areas of Bosnia and Herzegovina”.

With regard to the accused’s individual criminal responsibility, the Prosecution stated:

[The accused is] individually criminally responsible pursuant to Article 7(1) of the [1993 ICTY Statute] for the crimes referred to in Articles 3, 4, and 5 of the Statute as alleged in this indictment, which [he] planned, instigated, ordered, committed or in whose planning, preparation or execution [he] otherwise aided and abetted.

In the Stakić case before the ICTY in 2002, the accused was charged with genocide or complicity in genocide, crimes against humanity and violations of the laws or customs of war for his alleged role in the events in the Prijedor Municipality in 1992.

With regard to the accused’s individual criminal responsibility, the Prosecutor stated:

[The accused] is individually responsible for the crimes alleged against him in this indictment, pursuant to Article7(1) of the [1993 ICTY Statute]. Individual criminal responsibility includes planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of any crimes referred to in Articles 2, 3, 4 and 5 of the Tribunal Statute.

ICTY, Stakić case, Fourth Amended Indictment, 10 April 2002, § 37.

In its judgment in 2003, the ICTY Trial Chamber, analysing the different modes of liability contained in Article 7(1) of the 1993 ICTY Statute, held on “ordering”:

444. The Prosecution submits in respect of “ordering” that proof is required that one or more persons performed the actus reusof the crime in question as a perpetrator, with or without the participation of the accused. Such proof, in the Prosecution’s opinion, includes the perpetrator’s having acted “in execution of or otherwise in furtherance of an express or implied order by the accused to the perpetrator as a subordinate or other person over whom the accused possessed dejure or de facto authority to order.” A formal superior-subordinate relationship between the accused and the perpetrator need not have existed; it is sufficient that the accused possessed the authority to order and that that authority can be reasonably implied. Finally, the Prosecutor contends with regard to “ordering” that the accused must fulfil the relevant mens rea requirement of the crime in question and have been aware of the substantial likelihood that the crime committed would be a consequence of the implementation of the order given.

445. The Trial Chamber considers “ordering” to refer to “a person in a position of authority using that position to convince another to commit an offence.” The person “ordering” must have the required mens rea for the crime with which he is charged and must have been aware of the substantial likelihood that the crime committed would be the consequence when executing or otherwise furthering the implementation of the order. The Trial Chamber considers, however, that an additional conviction for ordering a particular crime is not appropriate where the accused is found to have committed the same crime.

ICTY, Stakić case, Judgment, 31 July 2003, §§ 444–445.

International Criminal Tribunal for the former Yugoslavia

In the Momir Nikolić case before the ICTY in 2002, the accused, an officer in the Army of the Republika Srpska (VRS), was charged with genocide or complicity in genocide, crimes against humanity (murder, extermination, persecutions, inhumane act of forcible transfer), punishable under Article 5 of the 1993 ICTY Statute, and violations of the laws or customs of war (murder), punishable under Article 3 of the 1993 ICTY Statute, for his alleged role in the events in the Srebrenica enclave in 1995. With regard to the accused’s individual criminal responsibility under Article 7(1) of the 1993 ICTY Statute, the Prosecution stated:

Pursuant to Article 7(1) of the [1993 ICTY Statute], [the accused is] individually responsible for the crimes charged against [him] in this Amended Indictment. [He] committed, planned, instigated, ordered, and otherwise aided and abetted in the planning, preparation, and execution of these charged crimes.

Following a plea agreement jointly filed by the accused and the Prosecution, the accused pleaded guilty to the charge of persecutions. The Trial Chamber, after requesting some amendments, accepted the plea and entered a corresponding finding of guilt. The remaining charges were dismissed.

In the Obrenović case before the ICTY in 2002, the accused, Dragan Obrenović, an officer in the Army of the Republika Srpska (VRS), was charged with complicity in genocide, crimes against humanity (murder, extermination, persecutions on political, racial and religious grounds) and violations of the laws or customs of war (murder), for his alleged role in the events in the Srebrenica enclave in 1995. With regard to the accused’s individual criminal responsibility, the Prosecutor, inter alia,stated:

Pursuant to Article 7(1) of the [1993 ICTY Statute], [the accused is] individually responsible for the crimes charged against [him]. [The accused] committed, planned, instigated, ordered, and otherwise aided and abetted in the planning, preparation, and execution of these charged crimes.

ICTY, Obrenović case, Amended Joinder Indictment, 27 May 2002, § 27.

Following a plea agreement jointly filed by the accused and the Prosecution, the accused pleaded guilty to the charge of persecutions. The Trial Chamber accepted the plea and dismissed the remaining charges.

In the Strugar case before the ICTY in 2003, the accused, a commander in the Yugoslav People’s Army (JNA), was charged with six counts of violations of the laws or customs of war (murder, cruel treatment, attacks on civilians, devastation not justified by military necessity, unlawful attacks on civilian objects, and destruction or wilful damage done to institutions dedicated to religion, charity), punishable under Article 3 of the 1992 ICTY Statute, for his role in a military campaign against the Dubrovnik region of Croatia.

In its Rule 98bis Decision in 2004, the Trial Chamber considered the form of individual criminal liability that arises under Article 7(1) of the 1993 ICTY Statute from ordering the commission of a crime:

85. This form of liability requires that an accused possessed the authority to order the commission of a crime. A formal superior-subordinate relationship between the person giving the order and the one executing it is not a requirement in itself, nor is it that the order be given in writing, or in any particular form, or directly to the individual executing it. The existence of an order may be proven through direct or circumstantial evidence. With regard to the requisite mens rea, it must be established that the accused intended the crime to be committed or was aware of the substantial likelihood that the commission of the crime would be a consequence of his acts.

86. With respect to the legal definition of this form of liability, the Defence submits that it must also be established that the person who has committed the crime “did so while acting in accordance with a plan or order”. The jurisprudence of the Tribunal does not provide a clear answer whether the proof of a causal link between the order and the commission of the crime is required. However, with respect to an analogous form of responsibility, namely instigation, the jurisprudence of the Tribunal has established that a causal link between the act of instigation and the physical perpetration of a crime needs to be demonstrated as part of the actus reus. This link, however, need not be such as to show that the offence would not have been perpetrated without the participation of the instigator. For present purposes, without reaching a final decision on these matters, the Chamber will proceed on the basis that the form of liability described as “ordering” is closely associated with that of “instigating”, subject to the additional requirement that the person ordering the commission of a crime have authority over the person physically perpetrating the offence. Hence, the Trial Chamber will proceed on the basis that, with respect to “ordering”, a causal link between the order and the commission of the offence must be shown. Thus, in the present case, for the allegations that the Accused ordered the crimes charged under Counts 1 to 6 to remain, there must be evidence capable of establishing that an order of the Accused contributed in fact to the commission of the crime.

ICTY, Strugar case, Rule 98bis Decision, 21 June 2004, §§ 85–86.

In its judgment in 2005, the Trial Chamber reaffirmed the position expressed in the Rule 98bis Decision:

331. This form of liability requires that at the time of the offence, an accused possessed the authority to issue binding orders to the alleged perpetrator. A formal superior-subordinate relationship between the person giving the order and the one executing it is not a requirement in itself, nor need the order be given in writing, or in any one particular form, or directly to the individual executing it. The existence of an order may be proven through direct or circumstantial evidence.

332. As this form of liability is closely associated with “instigating,” subject to the additional requirement that the person ordering the commission of a crime have authority over the person physically perpetrating the offence, a causal link between the act of ordering and the physical perpetration of a crime, analogous to that which is required for “instigating”, also needs to be demonstrated as part of the
actus reus of ordering. The Chamber further accepts that, similar to instigating, this link need not be such as to show that the offence would not have been perpetrated in the absence of the order.

333. With regard to the requisite mens rea, it must be established that the accused in issuing the order intended to bring about the commission of the crime, or was aware of the substantial likelihood that it would be committed in the execution of the order. The mens rea of the accused need not be explicit, it may be inferred from the circumstances. Indeed, as mens rea is a state of mind, its proof is typically a matter of inference. The standard of proof dictates, of course, that it be the only reasonable inference from the evidence.

ICTY, Strugar case, Judgment, 31 January 2005, §§ 331–333.

International Criminal Tribunal for the former Yugoslavia

In the Orić case before the ICTY in 2005, the accused, appointed as commander of the Srebrenica Territorial Defence (TO) Headquarters in 1992, was charged with several counts of violations of the laws or customs of war (murder, cruel treatment, wanton destruction of cities, towns or villages, not justified by military necessity), punishable under Article 3 of the 1993 ICTY Statute, for his alleged role in events occurring in the Srebrenica enclave in 1992–1993.

He was charged partly under Article 7(1) of the 1993 ICTY Statute, for his direct individual criminal responsibility,

ICTY, Orić case, Third Amended Indictment, 30 June 2005, Count 5.

and partly under Article 7(3) if the 1993 ICTY Statute, for his individual criminal responsibility as superior.

ICTY, Orić case, Third Amended Indictment, 30 June 2005, Counts 1–3.

Regarding Article 7(1) of the 1993 ICTY Statute, the Prosecution stated: “Individual criminal responsibility includes planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of any acts or omissions set forth in this indictment.”

ICTY, Orić case, Third Amended Indictment, 30 June 2005, § 12.

The Trial Chamber found the accused guilty of the failure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of murder and cruel treatment from 27 December 1992 to 20 March 1993. He was sentenced to two years’ imprisonment.

ICTY, Orić case, Judgment, 30 June 2006, §§ 578, 782, X. Disposition.

International Criminal Tribunal for the former Yugoslavia

In the Boškoski and Tarčulovski case before the ICTY in 2005, the accused, Ljube Boškoski and Johan Tarčulovski, were charged with violations of the laws or customs of war (murder, wanton destruction and cruel treatment), punishable under Article 3 if the 1993 ICTY Statute, for their role in directing an unlawful attack on civilians and civilian objects in the village of Ljuboten.

With regard to Johan Tarčulovski’s criminal responsibility for orders to commit war crimes, the Prosecutor stated:

Johan Tarčulovski is … individually criminally responsible for ordering, planning and instigating the crimes charged in the Amended Indictment by virtue of his participation in the attack on Ljuboten … He directly intended that these crimes be committed or at least he had the awareness of the substantial likelihood that the crimes would be committed in the execution of his orders, plans and instigation.

In its judgment in the case in 2010, the ICTY Appeals Chamber considered the actus reus of ordering a crime under Article 7(1) of the 1993 ICTY Statute, stating:

[T]he actus reus of ordering requires that a person in a position of authority instruct another person to commit an offence. There is no requirement that the order be given in any particular form, and the existence of the order may be proven through circumstantial evidence. Furthermore, it is sufficient to demonstrate that the order substantially contributed to the physical perpetrator’s criminal conduct.

In the Prlić case before the ICTY in 2005, the accused were charged, inter alia, with grave breaches of the 1949 Geneva Conventions and violations of the laws or customs of war, for their role in a campaign to

politically and militarily subjugate, permanently remove and ethnically cleanse Bosnian Muslims and other non-Croats who lived in areas on the territory of the Republic of Bosnia and Herzegovina which were claimed to be part of the Croatian Community (and later Republic) of Herceg-Bosna, and to join these areas as part of a “Greater Croatia” … by force, fear or threat of force, persecution, imprisonment and detention, forcible transfer and deportation, appropriation and destruction of property and other means … punishable under Articles 2, 3, and 5 of the [1993 ICTY] Statute.

ICTY, Prlić case, Amended Indictment, 16 November 2005, § 15.

With regard to the criminal responsibility of the accused, the Prosecutor stated, inter alia:

Each of the accused, Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, and Berislav Pušić, planned, instigated, ordered and/or committed the crimes charged in this indictment, pursuant to Article 7(1) [of the 1993 ICTY Statute]. Each accused is responsible for his role and participation in the crimes charged, based on his own acts and, where he had a duty to act, on his omissions or failures to act. Each accused is also charged as a co-perpetrator and/or indirect perpetrator or indirect co-perpetrator. Each accused is responsible for the acts or omissions which he accomplished, effected or caused through or by means of other persons, such as subordinates or other persons (including persons he controlled or over whom he exercised substantial influence), whether such persons acted knowingly or as an innocent agent or actor. In addition or in the alternative, each accused is responsible for the crimes which he committed or caused to be committed, directly or indirectly through other persons, based on the joint control and co-ordination which he possessed and effected with other persons (including the other persons charged in this indictment) over the criminal conduct of Herceg-Bosna/HVO authorities and forces which were used as tools, by or through organised structures of power which they controlled and in which each of them played a key role. Each accused acted with the knowledge and state of mind required for the commission of the crime charged, was aware of the importance of his role and the control that he exercised over other persons that were used to commit the crime, and acted with mutual awareness of the substantial likelihood that crimes would occur as a direct consequence of the pursuit of the common goal.

ICTY, Prlić case, Amended Indictment, 16 November 2005, § 218.

International Criminal Tribunal for the former Yugoslavia

In the Čermak and Markač case before the ICTY in 2005, the accused were charged with crimes against humanity (persecution, deportation, inhumane acts, and murder) and violations of the laws or customs of war (plunder, wanton destruction, murder, and cruel treatment), for their alleged role in a campaign to permanently remove the Serb population from the Krajina region of Croatia.

With regard to the accused’s criminal responsibility, the Prosecutor stated, inter alia:

Pursuant to Article 7(1) [of the 1993 ICTY Statute], each accused is charged with and criminally responsible for the crimes which he planned, instigated, ordered and/or committed. As part of this responsibility, each accused is charged as a co-perpetrator and/or indirect perpetrator. Each accused is responsible for his participation in the crimes charged, based on his own acts and, where he had a duty to act, on his omissions or failures to act, both directly and indirectly, through or by way of his subordinates or other persons, and by or through structures of power of which he was a part or in which he played a role.

In the Rašević case before the ICTY in 2006, the accused, Mitar Rašević, commander of the guards at Kazneno-Popravni Dom (“KP Dom”, detention centre in Foča, Bosnia and Herzegovina) until at least October 1994, and Savo Todović, deputy commander of the KP Dom until at least August 1994, were charged with several counts of violations of the laws or customs of war, punishable under Article 3 of the 1993 ICTY Statute, and crimes against humanity, punishable under Article 5 of the 1993 ICTY Statute.

With regard to the accused’s individual criminal responsibility, the Prosecution stated:

[The accused] are individually criminally responsible for the crimes referred to in Articles 3 and 5 of the [1993 ICTY Statute] and described in this indictment. The Accused planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of any acts or omissions set forth below.

The Rašević case did not go to trial before the ICTY. Following the Prosecution’s request for a referral of the case, the accused were transferred to the authorities of Bosnia and Herzegovina in October 2006.

International Criminal Tribunal for the former Yugoslavia

In the Dragomir Milošević case before the ICTY in 2006, the accused was charged with crimes against humanity (murder and inhumane acts) and violations of the laws or customs of war (terror and unlawful attacks on civilians).

With regard to the accused’s criminal responsibility for these crimes, pursuant to Article 7(1) of the 1993 ICTY Statute, the Prosecutor stated:

Dragomir Milošević is individually criminally responsible for planning and ordering the crimes charged in this indictment. Dragomir Milošević implemented and/or furthered the campaign of sniping and shelling of civilians, which had the primary purpose of spreading terror within the civilian population of Sarajevo. From May 1992, when he was Commander of the SRK’s 1st Romanija Infantry Brigade and from July 1993, when he was the SRK’s Chief of Staff, Dragomir Milošević knew of the campaign against the civilian population. When he became Corps Commander from on or about 10 August 1994, Dragomir Milošević inherited this campaign and proceeded to maintain and further it through direct orders, including orders to launch and fire air bombs, and orders he received and relayed down the chain of command of the Sarajevo Romanija Corps. He directly intended or was at least aware of the substantial likelihood that the execution of his plans and orders would involve or result in the crimes charged in this Indictment.

955. In order to establish individual criminal responsibility for planning, ordering or aiding and abetting of a crime, proof is required that the crime in question has actually been committed by the principal perpetrator(s) (“the underlying crime”). If the underlying crime has been established, the Trial Chamber will assess the individual criminal responsibility of the Accused for that crime.

956. Planning is established when it is proven that one or more persons contemplated the commission of one or more crimes provided for in the Statute, which were later perpetrated. If a person is convicted of having committed a crime, his involvement in the planning of the crime can only be considered as an aggravating factor.

957. Ordering requires that a person in a position of authority, whether de jure or de facto, instructs another person to commit a crime. This authority may be proved expressly or may be reasonably implied from the evidence.

958. The mens rea for the modes of liability of planning and ordering requires that the perpetrator must have acted or omitted to act with direct intent or indirect intent in relation to their own planning or ordering. In the latter instance of indirect intent, a perpetrator who orders or plans an act or omission with an awareness of the substantial likelihood that a crime will be committed in the execution of the order or plan has the requisite mens rea for establishing responsibility under Article 7(1) [of the 1993 ICTY Statute] in relation to ordering or planning. Planning or ordering with such awareness has to be regarded as accepting that crime.

In its judgment in 2009, the Appeals Chamber considered the elements of ordering as a mode of liability under Article 7(1) of the 1993 ICTY Statute, stating:

267. … [T]he actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of “instructing”, pivotal to the understanding of the question of “ordering”, requires “a positive action by the person in a position of authority”. [Galić case, Judgement on Appeal, § 176] … [A]n order does not necessarily need to be explicit in relation to the consequences it will have.

…

290. The Appeals Chamber recalls that ordering requires that a person in a position of de jure or de facto authority instructs another person to commit a crime. It does not, however, require the physical presence of the perpetrator at the site of the crime.

The accused in the Gotovina case before the ICTY in 2007 allegedly were part of an operation to remove the Serb population from the Krajina region. In the Joinder Indictment, the Prosecutor stated:

Pursuant to Article 7(1) [of the 1993 ICTY Statute], each accused is charged with and criminally responsible for the crimes which he planned, instigated, ordered, committed and/or aided and abetted. As part of this responsibility, each accused is charged individually and through participation in a joint criminal enterprise.

ICTY, Gotovina case, Joinder Indictment, 6 March 2007, § 38.

International Criminal Tribunal for the former Yugoslavia

In its judgment in the Martić case in 2007, the ICTY Trial Chamber stated:

Ordering requires that a person in a position of authority instructs another person to commit a crime. It is required that the crime in question was actually committed by the principal perpetrators. It is sufficient that the person ordering the crime possesses authority, whether de jure or de facto. This authority may be proved expressly or may be reasonably implied from the evidence. The mens rea is either direct intent in relation to the perpetrator’s own ordering or indirect intent, that is, a person, who orders with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for this mode of liability under Article 7(1) of the [1993 ICTY] Statute.

ICTY, Martić case, Judgment, 12 June 2007, § 441.

In its judgment in 2008, the ICTY Appeals Chamber considered the mens rea elements of ordering the commission of a crime pursuant to Article 7(1) of the 1993 ICTY Statute, stating:

220. … [T]he Trial Chamber held the following:

The mens rea [of ordering] is either direct intent in relation to the perpetrator’s own ordering or indirect intent, that is, a person who orders with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for this mode of liability under Article 7(1) of the [1993 ICTY] Statute. [Martić case, Judgement, § 441]

221. From the outset, the Appeals Chamber recalls its discussion in the Blaskić Appeal Judgement of the requisite subjective element for “ordering” a crime under the Statute. The Appeals Chamber in that case had to address the question of “whether a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute, and if so, how it should be defined.” [Blaškić case, Judgement on Appeal, § 32] After an extensive analysis, the Appeals Chamber concluded as follows:

The Appeals Chamber therefore holds that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting the crime. [Blaškić case, Judgement on Appeal, § 42]

222. The Appeals Chamber explained that there is indeed a lower form of intent than direct intent. It specified, however, that the “knowledge of any kind of risk, however low, does not suffice” [Blaškić case, Judgement on Appeal, § 41] to impose criminal responsibility under the Statute. It considered that “an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.” [Blaškić case, Judgement on Appeal, § 41] Hence, it reached its conclusion that the person giving the order must act with the awareness of the substantial likelihood that a crime will be committed in the execution of the order. This reasoning was confirmed in the Kordić and Cerkez and Galić Appeal Judgements.

ICTY, Martić case, Judgment on Appeal, 8 October 2008, §§ 220–222.

[footnotes in original omitted]

The Appeals Chamber also considered the effect of an offender’s position in the hierarchy on his or her overall culpability for ordering the commission of crimes:

While the gravity of the offence is the primary factor to be taken into account in imposing a sentence, the inherent gravity of a crime must be determined by reference to the particular circumstances of the case and the form and degree of the accused’s participation in the crime. The position of leadership of an accused may increase the relative seriousness of his crimes, when there has been an abuse of this position, even if the person did not materially and directly commit the crimes, but ordered them.

ICTY, Martić case, Judgment on Appeal, 8 October 2008, § 350.

[footnotes in original omitted]

International Criminal Tribunal for the former Yugoslavia

In the Haradinaj case before the ICTY in 2007, the accused, Ramush Haradinaj, commander of the Kosovo Liberation Army (KLA) in the Dukagjin Operational Zone, Idriz Balaj, commander of a KLA special unit operating in the Dukagjin Operational Zone, and Lahi Brahimaj, deputy commander of the Dukagjin Operative Staff, were charged with several counts of crimes against humanity and violations of the laws and customs of war for their alleged roles in acts committed in Kosovo in 1998.

As regards their individual criminal responsibility, the Prosecution stated:

Each Accused is charged with committing the crimes charged as participants in the JCE [joint criminal enterprise] described in paragraphs 26 and 27. In the alternative, each Accused is charged with having planned, instigated, ordered, committed, or otherwise aided and abetted the planning, preparation, or execution of the crimes as set out in the counts referred to in paragraphs 22 to 24.

In the indictment in the Bockarie case before the SCSL in 2003, the Prosecution stated:

[The accused], by his acts or omissions, is individually criminally responsible pursuant to Article 6.1. of the [2002 Statute of the Special Court for Sierra Leone] for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes the ACCUSED … ordered.

SCSL, Bockarie case, Indictment, 7 March 2003, § 28.

[emphasis in original]

Due to the accused’s death, the indictment was withdrawn.

SCSL, Bockarie case, Withdrawal of Indictment, 8 December 2003.

Special Court for Sierra Leone

In the indictment in the Koroma case before the SCSL in 2003, the Prosecution stated, inter alia:

[The accused], by his acts or omissions, is individually criminally responsible pursuant to Article 6.1. of the [2002 Statute of the Special Court for Sierra Leone] for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes the ACCUSED … ordered.

SCSL, Koroma case, Indictment, 7 March 2003, § 26.

[emphasis in original]

Special Court for Sierra Leone

In the Fofana and Kondewacase before the SCSL in 2004, the accused, senior members of the Civil Defence Forces (CDF), were charged, inter alia, with violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II, punishable under Article 3 of the 2002 Statute of the Special Court for Sierra Leone, and the use of child soldiers as an other serious violation of international humanitarian law, punishable under Article 4(c) of the 2002 Statute of the Special Court for Sierra Leone.

In its judgment in 2007, the Trial Chamber stated regarding the requirements of “ordering” pursuant to Article 6(1) of the 2002 Statute of the Special Court for Sierra Leone:

224. The Chamber notes that the Prosecution charges the Accused pursuant to Article 6(1) of the [2002 Statute of the Special Court for Sierra Leone] with ordering the crimes referred to in the Indictment.

225. The Chamber takes the view that the actus reusof “ordering” a crime requires that a person who is in a position of authority orders a person in a subordinate position to commit an offence. It is our opinion that no formal superior-subordinate relationship between the superior and the subordinate is required. It is sufficient that there is proof of some position of authority on the part of the Accused that would compel another to commit a crime in compliance with the Accused’s order. Such authority can be de jure or de facto and can be reasonably implied. The Chamber is of the view that a “causal link between the act of ordering and the physical perpetration of a crime […] also needs to be demonstrated as part of the actus reus of ordering” but that this “link need not be such as to show that the offence would not have been perpetrated in the absence of the order.”

226. The Chamber finds that to establish the mens rea requirement for “ordering” a crime, the Prosecution must prove that the Accused either intended to bring about the commission of the crime or that the Accused had reasonable knowledge that the crime would likely be committed as a consequence of the execution or implementation of that order.

SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, §§ 224–226.

[emphasis in original]

Special Court for Sierra Leone

In the indictment in the Brima case before the SCSL in 2005, the Prosecution stated:

[The accused], by their acts or omissions, are individually criminally responsible pursuant to Article 6.1. of the [2002 Statute of the Special Court for Sierra Leone] for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes each of them … ordered …

In its judgment in 2007, the Trial Chamber considered the law relating to individual criminal responsibility pursuant to Article 6(1) of the 2002 Statute of the Special Court for Sierra Leone. With regard to “ordering”, it stated:

772. The actus reusof “ordering” requires that a person in a position of authority uses that authority to instruct another to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is necessary; it is sufficient that the accused possessed the authority to order the commission of an offence and that such authority can be reasonably inferred. The order need not be given in writing or in any particular form, nor does it have to be given directly to the perpetrator. The existence of an order may be proven through circumstantial evidence.

773. The mens rea for ordering requires that the accused acted with direct intent in relation to his own ordering or with the awareness of the substantial likelihood that a crime will be committed in the execution of that order. The state of mind of an accused may also be inferred from the circumstances, provided that it is the only reasonable inference to be drawn.

774. The Trial Chamber agrees with the Prosecution that an accused may be responsible for “reissuing illegal orders”, i.e., for receiving a criminal order from a superior and, in turn, instructing subordinates to act upon it.

SCSL, Brima case, Judgment, 20 June 2007, §§ 772–774.

Special Court for Sierra Leone

In the indictment in the Sesay case before the SCSL in 2006, the Prosecution stated:

[The accused], by their acts or omissions, are individually criminally responsible pursuant to Article 6.1. of the [2002 Statute of the Special Court for Sierra Leone] for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes each of them … ordered.

Ordering involves a person in a position of authority instructing another person to commit an offence; a formal superior-subordinate relationship between the accused and the actual physical perpetrator is not required. The Appeals Chamber finds that the very notion of “instructing” requires a positive action by the person in a position of authority. … [O]rdering can be established by direct or circumstantial evidence.

SCSL, Sesay case, Judgment on Appeal, 26 October 2009, § 164.

[footnotes in original omitted]

Special Court for Sierra Leone

In the indictment in the Sankoh case before the SCSL in 2003, the Prosecution stated:

[The accused], by his acts or omissions, is individually criminally responsible pursuant to Article 6.1. of the [2002 Statute of the Special Court for Sierra Leone] for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes the ACCUSED … ordered.

SCSL, Sankoh case, Indictment, 7 March 2003, § 29.

[emphasis in original]

Due to the accused’s death, the indictment was withdrawn.

SCSL, Sankoh case, Withdrawal of Indictment, 8 December 2003.

Special Court for Sierra Leone

In the indictment in the Taylor case before the SCSL in 2007, the Prosecution stated:

The ACCUSED, by his acts or omissions, is individually criminally responsible pursuant to Article 6.1. of the [2002 Statute of the Special Court for Sierra Leone] for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Amended Indictment, which crimes the ACCUSED … ordered …

SCSL, Taylor case, Second Amended Indictment, 29 May 2007, § 33.

[emphasis in original]

Extraordinary Chambers in the Courts of Cambodia

In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber considered a commander’s responsibility for ordering war crimes, stating:

527. Ordering requires that a person in a position of authority instructs another person to commit a crime. No formal superior-subordinate relationship between the two persons is required. The person giving the order need only possess the authority, be it in law or in fact, to order the commission of the crime. Liability for ordering a crime may ensue where an accused issues, passes down, or otherwise transmits the order, including through intermediaries. There is no requirement that an order be given in writing or in any particular form, and the existence of an order may be proven through circumstantial evidence. It must be established that the issuance of the order was a substantially contributing factor to the criminal conduct that was later perpetrated.

528. The accused must have either intended to bring about the commission of the crime, or have been aware of the substantial likelihood that the crime would be committed as a consequence of the execution or implementation of the order.

In 1993, in a report submitted to the UN General Assembly on the protection of the environment in time of armed conflict, the ICRC stated:

The treaties of international humanitarian law provide various mechanisms … for implementing their substantive provisions. Among these mechanisms it is worth mentioning the following: … (b) the principle of individual criminal responsibility … The principle of the individual criminal responsibility of the perpetrator of certain breaches of international law, including those bearing on the environment in times of armed conflict, as well as of the persons ordering the commission of such acts, is of critical importance. It is firmly rooted in both customary and treaty law, such as the [1907 Hague Regulations] and the provisions of the Geneva Conventions relating to grave breaches.

ICRC, Report on the Protection of the Environment in Time of Armed Conflict submitted to the UN General Assembly, reprinted in Report of the UN Secretary-General on the protection of the environment in times of armed conflict, UN Doc. A/48/269, 29 July 1993, §§ 45 and 48.